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THE  LIBRARY 

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A  TREATISE 


ON  THE   LAW  OF 


THE  REMEDIES  BY  AND  AGAINST  THEM, 


torrogates'  Courts  of  fljt  j&fatc  of  lltto  goxli; 


TOGETHER    WITH 


AN    ACCOUNT    OF    THE  JURISDICTION    AND    PRACTICE 
OF    THOSE    COURTS 


ADMEASUREMENT   OF   DOWER. 


By  JOHN  WILLAKD,  LL.  D. 

LATE  ONE  OP  THE  JUSTICES  OP  THE  SUPREME  COURT  OP  THE  STATE  OP  NEW  Y'ORK, 
AND  AUTHOR  OP  A  TREATISE  ON  EQ.UITY  JURISPRUDENCE. 


ALBANY: 

WILLIAM   GOULD,   LAW   BOOKSELLER, 

No.   60,   State    Street. 

1  S  5  9. 


Entered  according  to  act  of  Congress,  in  the  year  one  thousand  eight  hundred  and  fifty-nine, 

By  WILLIAM  GOULD, 

in  the  clerk's  office  of  the  district  court  of  the  northern  district  of  New  York. 


I 


Steam  Presses  of  G.  M.  Davison,  Saratoga  Springs. 


PREFACE 


THE  following  treatise  was  commenced  by  the  author, 
while  he  held  the  office  of  Surrogate  of  Washington 
county,  near  twenty-live  years  ago.  Before  its  comple- 
tion, he  was  appointed  to  another  judicial  station,  and 
remained  in  office  till  January,  1854.  After  his  retire- 
ment from  the  bench,  he  was  repeatedly  desired  to  com- 
plete the  work ;  but  did  not  find  leisure  to  do  so  until 
the  present  time. 

The  extensive  changes  introduced  into  our  statutes 
relative  to  matters  testamentary  and  of  intestacy  during 
the  last  twenty-five  years,  and  the  light  shed  upon  this 
department  of  jurisprudence  by  the  repeated  decisions 
of  our  courts,  made  it  necessary,  in  order  to  conform  it 
to  the  existing  state  of  the  law,  to  re-write  the  whole 
treatise.  He  has  accordingly  done  so,  retaining  only 
portions  of  his  early  labors.  In  doing  this,  he  has  added 
greatly  to  the  value  of  the  book  ;  for  he  has  been  enabled 
to  avail  himself  of  the  latest  published  decisions  of  the 
courts  and  the  last  improvements  by  the  legislature. 

He  has  subjoined,  in  an  Appendix,  a  copious  selection 
of  forms,  more  numerous  than  will  be  found  in  any  other 
treatise  on  the  same  subject.  Most  of  these  are  such  as 
were  used  by  him  in  his  actual  business  while  holding 
the  office  of  Surrogate  ;  to  which  others  have  been  added, 
and  all  have  been  carefully  revised.  It  is  not  claimed 
that  there  is  any  novelty  in  these  forms  ;  for  it  is  be- 
lieved that  the  general  practice  of  the  various  Surro- 
gates' courts  is  substantially  the  same  in  all  the  counties  ; 
and  it  is  desirable  to  perpetuate  that  uniformity.  They 
are  intended  merely  as  a  guide.     The  practitioner  can 


75655: 


iv  PREFACE. 

readily  adapt  them  to  his  case,  and  abridge  or  expand 
them  as  circumstances  may  require. 

A  treatise  of  this  kind  is  not  a  work  of  imagination, 
in  which  the  author  can  draw  his  materials  from  his 
own  mind.  He  has,  therefore,  felt  it  to  be  his  duty,  in 
preparing  it,  to  consult  the  English  treatises  on  kindred 
subjects,  as  well  as  those  published  in  this  state,  and 
has  derived  assistance  from  all.  He  has,  however, 
mainly  relied  upon  the  statutes  and  the  adjudged  cases 
for  the  foundation  of  his  work.  He  has  endeavored  to 
state  nothing  as  law  unless  it  was  contained  in  the 
statutes  or  adjudged  cases,  or  was  fairly  deducible  from 
them. 

Should  it  be  asked  why  the  necessity  for  a  new  trea- 
tise on  a  subject  which  lias  already  been  discussed  by 
others,  it  may  be  answered,  without  disparagement  to 
any  one,  that  the  subject  embraces  a  vast  variety  of 
topics,  and  can  scarcely  be  fully  illustrated  by  any  one 
mind.  It  is  fir  from  being  exhausted  by  the  writers 
who  have  treated  of  it,  or  by  the  present  work. 

The  testamentary  law  of  this  state  was  borrowed,  in 
a  great  measure,  from  that  of  the  mother  country.  To 
adapt  it  to  our  wants  and  social  condition,  has  required 
the  aid  both  of  the  legislature  and  the  courts.  But  it 
was  not  till  within  a  few  years  that  the  decisions  of  any 
of  the  Surrogates  were  reported.  The  valuable  reports 
of  Mr.  Bradford  have  added  greatly  to  our  acquaintance 
with  this  branch  of  the  law.  The  subject  is  alike  inter- 
esting to  the  general  reader  and  the  legal  practitioner. 
That  the  present  work  may  contribute  something  to- 
wards a  diffusion  of  knowledge  on  the  topics  discussed 
in  it,  and  furnish  aid  to  those  called  upon  to  admin- 
ister the  estates  of  deceased  persons,  as  executors  and 
administrators,  or  their  counsel,  is  the  ardent  wish  of 
the  author. 

JOHX  WILLARD. 
Saratoga  Springs,  August,  1859. 


TABLE  OF  CONTENTS. 


PART  FIRST. 

OF  THE  COURT  HAVING  ORIGINAL  JURISDICTION  IN  THE  STATE 
OF  NEW  YORK  IN  MATTERS  TESTAMENTARY  AND  OF  INTES- 
TACY. 

SECTION  I. 

Of  the  Courts  having  Jurisdiction  to  Administer  the  Estates  of  Deceased  Per- 
sons under  the  Colony  and  at  the  close  of  the  Revolution,      .     Page  25-29 

SECTION  II. 
Of  the  Courts  having  Jurisdiction  to  Administer  the  Estates  of  Deceased 
Persons  from  the  close  of  the  Revolution  to  the  Abohtion  of  the  Court 
of  Probates  in  1823, 29-31 

SECTION  III. 
Of  the  Courts  having  Jurisdiction  to  Administer  the  Estates  of  Deceased 
Persons  since  the  Abolition  of  the  Court  of  Probates  in  1823,  and  as 

they  exist  at  the  present  time, 32-40 

Organization  under  Constitution  of  1846, 34 

A  Court  of  General  original  Jurisdiction,  ....  34 

Not  a  Court  of  Record, 35 

Surrogate  a  Local  Officer, 36 

His  General  Jurisdiction  by  Statute, 36 

Do.  as  to  Sales  of  Real  Estate  enlarged, 38,  39 

SECTION  IV. 

Of  the  Officers  of  the  Court, 40-45 

In  the  City  of  New  York,         ........  40 

In  Kings  County, 41 

In  the  other  Counties, 41 

As  to  Attorneys  and  Counsellors, 41-43 


vi  TABLE  OF  CONTENTS. 

As  to  Sheriffs,  Jailors,  Coroners,  &c 43 

General  Duties  by  Statute, 44 

To  issue  Commission  to  Foreign  Witnesses,      ....  45 

SECTION  Y. 
Of  Pleadings  in  Surrogates'  Courts, 45-48 

SECTION  VI. 

Of  the  Power  of  Surrogates'  Courts  to  set  aside  Proceedings  for  irregu- 
larity, and  to  grant  New  Trials  on  the  Merits,         .        .         .         .     49,  50 

SECTION  VII. 

Of  Miscellaneous  Matters  appertaining  to  the  Office  of  Surrogate,     .         50-55 

"What  Books  to  be  kept  by  him, 50,  51 

Seal  of  Office, 52 

To  file  and  preserve  Papers, 52 

Not  to  be  Counsel  or  Attorney  for  or  against  Executor  or  Admin- 
istrator,     .......         ....      53 

Nor  to  be  a  Partner  with  such  Attorney  or  Counsellor,    .         .  53 

Not  to  act  when  interested  or  of  Kin,  .         .         .         .         53,  54 

When  County  Judge  to  act,     .......  54 

To  give  Bail, 54 

County  Clerk  to  judge  of  sufficiency  of  Sureties,       .         .         .  55 

To  take  the  Oath  of  Office, 55 


PART  SECOND. 

OF  THE  ORIGINAL  AND  EXCLUSIVE  JURISDICTION  OF  SURRO- 
GATES' courts;  AND  HEREIN  OF  THE  APPOINTMENT  OF  EX- 
ECUTORS   AND    ADMINISTRATORS. 

CHAPTER  I. 

OF    WILLS,    THEIR    ORIGIN",    NATURE    AND    INCIDENTS,  ....       5G-G5 

CHAPTER  II. 

i  \KING,    REVOKING    AND    REPUBLISHING    WILLS;    AND     nEREIN'    OF    THE    PERSONS 
CAPABLE    OF    MAKING    A    WILL    OR    CODICIL G5-97 


TABLE  OP  CONTENTS.  vii 


SECTION  I. 


Of  the  Persons  incapable  from  want  of  Testamentary  Capacity,           .  66 

Infants, 67 

Idiots, G? 

Deaf  and  Dumb, 68 

Blind, VJ 

Holograph, '0 

Deaf  and  Blind, 70 

Illiterate, .         •         .    .  71 

Persons  of  Unsound  Mind,       .......  1 2 

Lunatics, '3 

Lucid  Interval, 74-79 

Partial  Insanity, 80 

Moral  Insanity, S3 

Old  Age, 84 

Imbecility, 87 

Drunkenness, 88 

SECTION  II. 

Of  Persons  incapable  by  Eestraint, 89-95 

Duress, °J 

Fear,  Praud,  Importunity, 90,  91 

Undue  Influence, 92 

Married  Women, 93 

SECTION  III. 
Of  the  Persons  disqualified  on  account  of  Conviction  for  Crimes,     .         95-97 


CHAPTER  III. 

OF   THE   FORM   AND   MANNER  OF   MAKING   A   WILL   AND   CODICIL,  .  97-118 

SECTION  I. 

Of  the  Statutory  Requirements  for  the  Making  and  Attestation  of  a  Will 
or  Codicil, 98-112 

SECTION  II. 

Of  the  Form  and  Language  of  a  Will,  and  the  Materials  of  which  it  is 
composed,  and  of  the  Person  by  whom  it  may  be  written,       .         112-115 


viii  TABLE  OF  CONTENTS. 

SECTION  III. 

Of  Nuncupative  Wills, •       .  115-117 

Codicils, 117 


CHAPTER  IV. 

OF   TIIE    REVOCATION    OF    WILLS, 118-134 

SECTION  I. 
Of  Revocation  by  a  subsequent  Will, 118-121 

SECTION  II. 
Of  Revocation  by  express  terms  in  a  subsequent  Will,  or  other  instru- 
ment,      121-123 

SECTION  III. 
Of  Revocation  by  cancellation,  burning,  tearing,  obliterating  or  destroy- 
ing it,       123-126 

SECTION  IV. 

Of  Revocation  effected  by  a  change  in  the  Testator's  condition,  such  as 
Marriage  and  the  like,  and  of  implied  and  partial  Revocation,       .    127-132 

SECTION  V. 
Of  the  Republication  of  Wills,  and  the  effect  thereof,  .         .'        .         132-134 


CHAPTER  V. 

OF   THE    APPOINTMENT   OF   EXECUTORS  J    THEIR    ACCEPTANCE,    REFUSAL   AND   RENUN- 
CIATION  OF    TIIE    OFFICE, 134-145 

SECTION  I. 
Who  are  Eligible  and  who  not, 134-141 

SECTION  II. 
Of  the  Executor's  refusal  or  acceptance  of  the  Office,  and  of  the  conse- 
sequences  of  such  refusal, 141-145 


TABLE  OF  CONTENTS.  ix 

CHAPTER  VI. 

OF    PROBATE,    AND     OF     THE     PROOF     AND     RECORDING    OF    WILLS     OF    REAL 

ESTATE,        145-184 

SECTION  I. 

OfProbate, 145 

Executor's  Power  before  Probate,     ......        147 

What  Surrogate  has  Jurisdiction  of, 148 

Manner  of  Obtaining, 149,  &c. 

By  what  Parties, 149, 152 

On  whom  Citation  to  be  served, 154,  &c. 

Guardians  ad  litem  for  Minors, 157 

In  case  any  of  the  Parties  are  Married  Women,        .         .         .        158 

What  constitutes  the  Probate, 145,  160 

Letters  Testamentary, 169 

Foreign  Executor,  and  Will  of  Foreigner,      .        .         .  162  et  seq. 

Testimony  to  be  Recorded, 16o 

Nuncupative  Will,        .        .  " 167 

SECTION  II. 
Of  the  Proof  and  Recording  of  Wills  of  Real  Estate,    .        .        .        107,  174 

SECTION  III. 
Of  Evidence  in  Testamentary  Cases, 174-184 


CHAPTER  VII. 

OF  ADMINISTRATION,    AND   THE   APPOINTMENT   OF   ADMINISTRATORS,      .  184-207 

SECTION  I. 

To  the  Surrogate  of  which  County  application  must  be  made  for  Letters 
of  Administration,  and  what  may  be  done  by  the  Administrator 
before  the  Grant, 187,  188 

SECTION  II. 

Of  the  Persons  to  whom  General  Administration  is  to  be  granted  in 
cases  of  total  intestacy ;  and  herein  of  those  who  are  incapacitated  to 
become  such  Administrators, 188-201 

2 


X  TABLE  OF  CONTENTS. 

SECTION  III. 

Of  the  Practice  of  the  Court,  its  mode  of  Proceeding  in  granting  Letters 
of  Administration,  and  of  their  Form, 201-206 


CHAPTER  VIII. 

OF   SPECIAL,  LIMITED   AND   TEMPORARY  ADMINISTRATORS  AND   COLLECTOR,   207-225 

SECTION  I. 
Of  Administration  cum  testamento  annexo, 207-211 

SECTION  II. 
Of  Administration  de  bonis  non, 211-214 

SECTION  III. 

Of  Administration  durante  minore  cetate;  and  herein  of  Administration 
to  the  Guardian  of  an  Infant  next  of  Kin,         ....        214-219 

SECTION  IV. 

Of  Collector,  and  herein  of  Administration  pendente  lite,  durantia  absentia, 
and  other  limited  and  temporary  Administration,         .         .  219-223 

SECTION  V. 
Of  the  Administration  Bond,  and  the  Bond  given  by  an  Executor  by 
order  of  the  Court,    .  224, 225 

CHAPTER  IX. 

OF  THE  EFFECT  OF  PROBATE  AND  LETTERS  OF  ADMINISTRATION  AS  LONG  AS  THEY  ARE 
IN  FORCE  J  OF  THE  REVOCATION  OF  THEM,  AND  OF  THE  CONSEQUENCES  THEREOF, 

225-243 
SECTION  I. 
Of  the  effect  of  Probate  and  Letters  of  Administration  as  long  as  they 
remain  unrepealed  and  unrevoked, 225-229 

SECTION  II. 
Of  the  Restoration  of  Probate, 229-234 

SECTION  III. 
Of  the  Revoking  of  Letters  Testamentary  and  Letters  of  Administra- 
tion, and  of  their  effect  upon  intermediate  acts,         .         .        .        234-241 


TABLE  OF  CONTENTS.  xi 

SECTION  IV. 
Of  the  Revocation  of  Probate  or  Letters  of  Administration  by  Appeal, 
and  of  the  effect  of  such  Revocation  on  the  mesne  acts  of  the  Exec- 
utor or  Administrator, 241-243 


CHAPTER  X. 

OF  THE  INVENTORY, 243-^69 

SECTION  I. 
Of  the  Ancient  Practice  on  the  subject  of  Inventories,        .        .        244-248 

SECTION  II. 

Of  the  Present  Practice  of  making  and  returning  an  Inventory  by 
the  Revised  Statutes ;  and  herein  of  the  appointment  of  Appraisers, 
their  power  and  duties, 248-263 

SECTION  III. 
Of  the  method  of  compelling  a  Return  of  an  Inventory  when  the  Exec-     - 
utor  or  Administrator  omits  that  duty ;  and  herein  of  compelling  a 
further  Inventory, 263-2G7 

SECTION  IY. 

Of  collecting  the  Effects;  and  herein  of  the  power  of  disposing  of  them, 

267-269 

CHAPTER  XI. 

OF  THE  PAYMENT  OF  THE  PERSONAL  CHARGES,  AND  THE  ORDER  OF  PAYING  THE  OTHER 
LIABILITIES  OF  THE  ESTATE,  .....'..  269-293 

SECTION  I. 
Of  Funeral  Expenses, 269-274 

SECTION  II. 

Of  Debts  entitled  to  a  preference  under  the  laws  of  the  United  States, 

274-277 

SECTION  III. 

Of  Taxes  assessed  upon  the  Estate  of  the  Deceased  previous  to  his 
death,      .  277-279 


xii  TABLE  OF  CONTENTS. 

SECTION  IV. 

Of  the  Preference  in  the  payment  of  Judgments  docketed,  and  Decrees 
enrolled  against  the  deceased,  according  to  their  priority,         .         279-284 

SECTION  V. 

Of  the  payment  of  Recognizances,  Bonds,  Sealed  Instruments,  Notes,  Bills, 
and  Unliquidated  Demands  and  Accounts,         ....        284-290 

SECTION  VI. 

Of  the  payment  of  an  Inferior  Debt  before  a  Superior,  and  of  miscellane- 
ous matters  in  relation  to  this  subject, 290-293 


CHAPTER  XII. 

OF  THE  RIGFITS  AND  DUTIES  OF   EXECCTORS   AND    ADMINISTRATORS,  WITH  RESPECT   TO 
THE  PAYMENT  OF  THE  DEBTS  OF  THE  DECEASED,         ....  293-304 

SECTION  I. 

Of  the  rights  and  duties  of  Executors  and  Administrators  with  respect 
to  calling  for  a  presentation  of  Claims  against  the  Estate ;  and  herein 
of  enforcing  payment  before  the  time  to  account,         .        .        .     293-299 

SECTION  II. 

Of  enforcing  the  payment  of  Judgments  against  Executors  or  Adminis- 
trators,             299-304 


PART  THIRD. 

OF  SUBJECTS  COGNIZABLE  IN  SURROGATES'  COURTS  OF  WHICH 
THEY  HAVE  NOT  EXCLUSIVE  JURISDICTION  J  AND  HEREIN  OF 
VARIOUS  STATUTORY  PROCEEDINGS  IN  THOSE  COURTS. 

CHAPTER  I. 

OF  PROCEEDINGS  BY  EXECUTORS  OR  ADMINISTRATORS  ON  THEIR  OWN  APPLICATION  BE- 
FORE THE  SURROGATE,  TO  OBTAIN  AUTHORITY  TO  MORTGAGE,  LEASE  OR  SELL  THE 
REAL  ESTATE  OF  THE  DECEASED  FOR  THE  PAYMENT  OF    DEBTS,         .         .        306-344 


TABLE  OF  CONTENTS.  xiii 

SECTION  I. 

Of  the  time  and  manner  of  making  application  for  authority  to  Sell,  Lease 
or  Mortgage  the  real  estate  of  the  deceased,  on  the  application  of  the 
Executors  and  Administrators,  and  the  proceedings  thereon  previous 
to  granting  the  order  of  sale,  306-321 

SECTION  II. 

Of  granting  an  order  for  Mortgaging,  Leasing  or  Selling  the  Real  Estate  of 
the  deceased,  and  the  proceedings  thereon,  to  the  consummation 
thereof,  321-333 

SECTION  III. 

Of  the  Distribution  of  the  avails  of  the  Real  Estate  of  the  deceased,  leased, 
mortgaged  or  sold,  under  the  order  of  the  Surrogate,         .         .       333-34-4 

CHAPTER  II. 

OF  PROCEEDINGS  AGAINST  EXECUTORS  OR  ADMINISTRATORS  TO  CAUSE  AN  APPLICA- 
TION TO  BE  MADE  TO  THE  SURROGATE  FOR  AN  ORDER  TO  LEASE,  MORTGAGE  OR 
SELL  THE    REAL    ESTATE    OF    THE    DECEASED,  FOR   THE    PAYMENT    OF   HIS    DEBTS, 

344-347 
CHAPTER  III. 

OF  LEGACIES,  THEIR  DIFFERENT  KINDS  AND  INCIDENTS,  AND  THE  CONSTRUCTION 
THEREOF,  348-377 

SECTION  I. 
Of  the  different  kinds  of  Legacies, 348-365 

SECTION  II. 
Of  the  effect  of  Legacies  on  the  relation  of  Debtor  and  Creditor,  365-368 

SECTION  III. 
Of  the  Person  capable  of  being  a  Legatee,  and  of  certain  Rules  of  Con- 
struction, not  only  of  the  Will,  but  with  regard  to  the  thing  be- 
queathed, and  the  Person  to  whom  it  is  bequeathed,        ,         t        368-377 


CHAPTER  IV. 

OF   THE    PAYMENT   OF   LEGACIES,    AND    HEREIN   OF    THE    PAYMENT   OF   THE    RESIDUE 
AND    OF    DISTRIBUTIVE    SHARES,  ......  377-400 


xiv  TABLE  OF  CONTENTS. 

SECTION  I. 
Of  the  time  of  Payment, 377-379 

SECTION  II. 
Of  the  Assent  of  the  Executor  to  a  Legacy,         ....        379,  380 

SECTION  III. 
Of  the  Order  in  which  Legacies  are  to  be  Paid,  and  of  Abatement  of 
Legacies, 380-383 

SECTION  IV. 
Of  the  Person  to  whom  a  Legacy  is  to  be  Paid,  .        .        .        383-390 

SECTION  V. 
Of  Interest  on  Legacies ;  of  the  Increase  of  Legacies ;  of  Legacies  charged 
on  Land ;  and  of  Eefunding  Legacies, 390-394 

SECTION  VI. 
Of  the  Payment  of  the  Residue,  and  of  the  Rights  of  the  Executor  thereto 
when  there  is  no  Residuary  Legatee, 394,  39o 

SECTION  VII. 

Of  Distribution,  and  of  the  Duties  of  an  Executor  or  Administrator  with 
respect  thereto, 39o-409 

CHAPTER  V. 

OF  ENFORCING  THE  PAYMENT  OF  LEGACY  AND  OF  DISTRIBUTIVE  SHARES  IN  SUR- 
ROGATES' courts;  AND  HEREIN  OF  COMPELLING  and  RENDERING  final  ac- 
counts,            409-443 

SECTION  I. 

Of  the  Mode  of  Enforcing  the  Payment  of  Legacies  and  Distributive 
shares, 410-422 

SECTION  II. 
Of  the  Parties  necessary  to  a  General  Account;  the  mode  of  serving 
Process ;  and  herein  of  the  appointing  Guardians  ad  litem  for  Minors, 
and  notice  to  Creditors  to  exhibit  Claims,         ....         422-426 

SECTION  III. 
Of  the  mode  of  Rendering  the  Account;  and  herein  of  Auditors  and 
allowing  the   Claims   of  Executors   or   Administrators   against   the 
Estate,  and  of  their  Commissions  and  Expenses,       .         .         .         426-434 


TABLE  OF  CONTENTS.  xv 

SECTION  IV. 

Of  the  effect  of  the  Final  Settlement ;  of  the  form  of  the  Decree  thereon ; 
Distribution,  and  the  mode  of  enforcing  it,       ...         .        434-440 

SECTION  V. 
Of  Rendering  an  Account  by  an  Executor  or  Administrator  in  other 
cases,  and  of  Costs, 440-443 


CHAPTER  VI. 

OF   GUARDIAN   AND   WARD, 443-4G4 

SECTION  I. 

Of  the  different  kinds  of  Guardians,  their  Powers  and  Duties,     .        443^52 

SECTION  II. 
Of  the  Appointment  of  Guardians,  and  in  what  way  it  is  made,  452-459 

SECTION  III. 
Of  the  removal  of  Guardians  by  the  Surrogate ;  accepting  their  resigna- 
tion ;  and  of  their  Accounting  before  the  Surrogate,         .         .        459-4G4 

CHAPTER  VII. 

of  admeasuremnt  of  dower, 4g4-471 

Appendix  of  Forms, 473 


TABLE  OF   CASES. 


Adams  v.  Winne,  130,  132. 

Adsit  v.  Adsit,  334. 

Aikin  v.  Dunlap,  276. 

Ainslie  v.  Radcliff,  281,  283. 

Aird,  in  the  goods  of,  138. 

Albany  City  Bank  v.  Schermerhorn, 

439,  440. 
Allen  v.  The  Public  Administrator,  92. 

"     v.  Dundas,  226,  229. 

"     v.  Bishop,  285. 
Allen  and  Wife  v.  Bishop's  Executors, 

298. 
Almes  v.  Blythe,  195. 

"     v.  Almes,  213,  155. 
Alston  v.  Jones,  233. 
Anderson,  Matter  of,  446,  447,  459. 
Anstruther  v.  Chalmer,  60,  164. 
Applegate  v.  Cameron,  253. 
Appleby,  in  re.,  124. 
Archer  v.  Morse,  226. 
Arthur  v.  Arthur,  132. 
Armstrong  v.  Moran,  354. 
Atkins  v.  Kinnan,  39,  223. 
Atkinson,  Matter  of,  169. 
Attorney  General  v.  Hooker,  394. 
Ayrey  v.  Hill,  58. 


B 


Babcock  v.  Lillis,  417. 

"        v.  Booth,  140. 
Bagsley  v.  Buce,  465. 
Baggott  v.  Boulger,  298,  224. 
Bagwell  v.  Dey,  354. 
Baine  v.  Pine,  218. 
Baker  v.  Kingsland,  315. 
Bank  of  Poughkeepsie  v.  Hasbrouck, 

436. 
Bannatyne  v.  Bannatyne,  79. 
Banks  y.  Philan,  376,  394. 

3 


Barker  v.  May,  419. 
Barheydt  v.  Barheydt,  370. 
Barry  v.  Butler,  72,  114. 
Barstow  v.  Goodwin,  130,  132. 
Barnes  v.  Crowe,  133. 
Barrington  v.  Tristam,  391. 
Bartholomew  v.  Henley,  110. 
Barton  v.  Bobbins,  70,  71. 
Barnsley,  ex  parte,  72. 
Becker  v.  Dunning,  98. 
Beck  v.  Gillis,  132. 
Bennett  v.  Wade,  90. 
"        v.  Silliman,  110. 
"        v.  Byrne,  455. 
Bell  v.  Armstrong,  152. 
Bernes  v.  Weisser,  280. 
Berry  v.  Usher,  367. 
Betts  v.  Jackson,  126. 
Beverly's  case,  67,  73. 
Bibby  v.  Myer,  158. 
Birdsall  v.  Hewlett,  357,  390,  392. 
Bishop  v.  Bishop,  354. 
Bogardus  v.  Trinity  Church,  27. 

v.  Clark,  61,  226. 
Bodle  v.  Hulse,  144. 
Bogert  v.  Furman,  196. 
«      v.  Hertell,  269. 
Bolton  v.  Barry,  87. 
Bostwick  v.  Atkins,  39. 
Bowers  v.  Smith,  394. 
Borst  v.  Griffin,  465. 
Bowles  v.  Harvey,  264. 
Blanchard  v.  Nestle,  67,  68,  (3,  8/, 

91,  115. 
Blackborough  v.  Davis,  404. 
Bleecker  v.  Lynch,  158. 
Bloodgood  v.  Bowen,  342,  420. 
Bloom  v.  Burdick,  31,  35,  37,  38,  99, 

312.  313. 
Bloomer  v.  Bloomer,  240. 
P.liss  v.  Sheldon,  254. 
Brinkerhoof  v.  Remsen,  102,  108. 


XV111 


TABLE  OF  CASES. 


Bridge  v.  Brown,  272. 
Bradstreet  v.  Clark,  369. 
Bradley  v.  Amidon,  370. 
Bradner  v.  Falkner,  378,  382,  390. 
Brett  v.  Brett,  104. 
Brogden  v.  Brown,  75,  79,  83. 
Brush  v.  Wilkins,  127. 
Brown  v.  Brown,  132. 

"       exparte,  209. 

"       v.  The  Public  Administrator, 
279. 

"       v.  Allen,  383. 

"       v.  Lynch,  454. 
Browning  v.  Keane,  191. 
Bronsdon  v.  Winter,  350. 
Bronson  v.  Ward,  413,  421. 
Burk  v.  Draper,  30. 
Bullock  v.  Bogardus,  296,  297. 
Bulkley  v.  Eedmond,   125,  126,  169, 

150. 
Bunce  v.  Vander  Griff,  135. 
Bunn  v.  Winthrop,  372. 
Burges  v.  Burges,  50. 
Burr,  Matter  of,  89. 
Burdick  v.  Gibbs,  95. 
Burwell  v.  Shaw,  160. 
Burritt  v.  Silliman,  176. 
Burr  v.  Burr,  134,  399. 

"     v.  Sherwood,  404. 
Budd  v.  Silver,  198. 
Burtis  v.  Dodge,  442,  340,  390. 
Butler  v.  Benson,  100,  106. 

"      v.  Butler,  247. 

"      v.  Hempstead's  Executors,  284, 
291,  299,  300. 

"      v.  Robson,  414. 
Burridge  v.  Bradyl,  381. 
Butts  v.  Genung,  338. 
Byrne  v.  Van  Hoesen,  444. 

c 

Cairns  v.  Chaubert,  389, 
Campbell  v.  Logan,  105. 

«        v.  Bowne,  218. 

"        v.  Bruen,  303,438,416,417, 
421. 

"        v.  Prescott,  371. 
Canal  Commissioners  v.  The  People,  27. 
Carle  v.  Underbill,  103. 
Cartwright  v.  Cartwright,  75,  182. 
Carroll  v.  Norton,  182. 
Caw  v.  Robertson,  171,  176,  368. 
Chaffee  v.  Baptist  Convention,  71,  100, 

101,  108. 
Champion  v.  Brown,  331. 
CI  landers,  Duke  of,  v.  Talbot,  358. 


Chandes  v.  Northup,  417. 
Churchill  v.  Prescott,  198,  404,  406. 
Chrystie  v.  Phyfe,  354. 
Clark  v.  Fisher,  74,  87,  182. 
Cleaver  v.  Spurling,  359. 

"        v.  Sawyer,  74,  87,  91. 

"        v.  Lean,  718. 

"        v.  Clark,  342,  389,  420,  450. 
Coates  v.  Cheever,  470. 
Collier  v.  Idley's  Executors,  152,  230, 

zoZ,  Zoo. 

Commonwealth  v.  Leach,  27. 

"  v.  Knowlton,  27. 

Conklin  v.  Egerton's  Executors,  209. 
Conard  v.  The  Atlantic  Ins.  Co.  276. 
Cooper  v.  Bockett,  102. 
v.  Green,  157. 

"       v.  Remsen,  359,  360. 
Coope  v.  Lowerre,  136,  137,  197. 
Colegrove  v.  Horton,  237. 
Coleman  v.  Coleman,  348. 
Collins  v.  Macpherson,  355. 

"       v.  Hoxie,  374. 
Cockerell  v.  Barber,  361. 
Covenhoven  v.  Shuler,  369,  38S. 
Connoly  v.  Pardon,  389. 
Conigan  v.  Kiernan,  453. 
Countess  of  Gower  v.  EarlGower,  372. 
Cox  v.  Godslave,  373. 
Corwin  v.  Merritt,  31,  810,  312. 

"       v.  Merrick,  35,  37. 
Couch  v.  Delaplain,  336. 
Cornish  v.  Cornish,  50. 
Colton  v.  Ross,  60. 
Cotter  v.  Lawyer,  180. 
Cotteral  v.  Brock,  136. 
Craig  v.  Craig,  391,  342,  417. 
Creeley  v.  Ostrander,  86. 
Crispell  v.  Dubois,  72,  114. 
Cromer  v.  Pinchon,  869,  375. 
Crosby  v.  Clare,  375. 
Crumb,  Matter  of,  447,  459. 
Curling  v.  Thornton,  163,  164. 
Culver  v.  Haslam,  179,  180,  181, 
Cunningham  v.  Burdell,  192. 

D 

Dakin  v.  Hudson,  31,  35, 
Davis  v.  Shields,  113. 

"     v.  Skidmore,  301. 
Dale  v.  Roosevelt,  212. 
Dawes  v.  Head,  406. 
Day,  ex  parte.  60. 
Day  v.  West,  194. 
Dean  v.  Russell,  42. 
Den  v.  Johnson,  74, 


TABLE  OF  CASES. 


xix 


Delafield  v.  Parish,  219. 
Delaplane  v.  Lawrence,  326,  328. 
De  Peyster  v.  Clendening,  388. 

v.  Clarkson,  450,  451. 
De  Witt  v.  Yates,  302. 
Dewey  v.  Dewey,  179. 

"      v.  Bailey,  181,  182. 
Dew  v.  Clark,  81. 
Dickinson  v.  Dickinson,  113. 
Dissosway  v.  The  Bank  of  Washington, 

295,  299,  417. 
Disbrow  v.  HenshaAV,  459. 
Dix  v.  Reid,  360. 
Dixon's  Executors  v.  Ramsay's  Execu- 

cutors,  405. 
Doe  v..  Roe,  49,  101,  108. 

"  v.  Burdett,  102. 

"  v.  Perkins,  125. 

"  v.  Backintose,  140. 
Dobbeer  v.  Casey,  291. 
Dodge  v.  Manning,  358,  392. 
Dominick  v.  Michael,  341. 
Doran  v.  Dempsey,  438,  439,  4G3. 
Dox  v.  Backinstose,  299. 
Dubois  v.  Dubois,  439. 
Duffield  v.  Robison,  88. 
Duncan  v.  Dodd,  326. 
Dyer,  Matter  of,  451,  452,  4G1. 

E 

Earl  of  Darlington  v.  Pultney,  58,  60. 

Easton's  Will,  Matter  of,  169. 

Eddy  v.  Traver,  324. 

Edwards  v.  Freeman,  401. 

Ellis  v.  Walker,  349. 

Elliott  v.  Gurr,  191. 

Elme  v.  De  Costa,  199. 

Emerson  v.  Bowers,  136,  137,  205. 

Enders  v.  Enders,  349,  353. 

Evans  v.  Thomas,  74. 

"      v.  Tripp,  350. 
Evelyn  v.  Evelyn,  404. 
Eyer  v.  Countess  of  Shaftsbury,  451. 


F 


Fame  v.  Tyler,  150. 
Farnsworth  v.  Oliphant,  463. 
Farrington  v.  King,  319. 
Fenwick  v.  Sears,  163. 
Ferguson  v.  Brown,  315,  317. 
Field  v.  Schieffelin,  444,  449,  450. 
Fitzpatrick  v.  Brady,  291,  299. 
Fittiplace  v.  Gorges,  93. 
Finch,  Sir  Moyle's  case,  217. 
Flagg  v.  Ruden,  297,  412. 


Floyd  v.  Barker,  394. 
Francisco  v.  Filch,  417.  , 
Freakley  v.  Fox,  317. 
Freeman  v.  The  People,  83. 
Frere  v.  Peacoke,  83. 
Frits,  matter  of,  424,  448. 
Fonda  v.  Van  Home,  443. 
Fonereau  v.  Fonereau,  356. 
Foot  v.  Stevens,  31,  32. 
Foot  v.  Gooding,  296,  297. 
Foster  v.  Mott,  447,  454. 

"      v.  Wilbur,  46,  413,  414,  416. 

"      v.  Foster,  125. 
Foshay  v.  Ferguson,  90. 
Fox  v.  Fox,  367. 
Fuller  v.  Yates,  364. 
Fuller  v.  Jackson,  453. 

G 

Gage  v.  Gage,  102. 
Gale  v.  Edsall,  467. 
Gansevort  v.  Nelson,  297. 
Gardner  v.  Gardner,  92,  428,  433. 

"        v.  Miller,  261,  262. 

"        v.  Printup,  352,  354. 

"        v.  Heyer,  374. 
Garrat  v.  Niblock,  376. 
Garrick  v.  Lord  Camden,  376. 
Genet   v.    Talmadge,  383,  384,  409, 

443,  449. 
Gibbons  v.  Cross,  228. 
Gilliat  v.  Gilliat,  166. 
Gilchrist  v.  Rea,  39. 
Glen  v.  Fisher,  391. 
Glover  v.  Holley,  37. 
Glynn  v.  Oglander,  112. 
Gombault  v.  The  Public  Administra- 
tor, 69,  70,  79. 
Gottsberger  v.  Smith,  222. 
Grant  v.  Leslie,  138. 
Graham  v.  The  Public  Administrator, 

405. 
Gratacap  v.  Phyfe,  413,  416. 
Green  v.  Shipworth,  113. 
Grignion  v.  Grignion,  413,  420. 
Grotgen  v.  Grotgen,  192. 

H 

Hackley  v.  Hayton,  282. 
Halsey  v.  Reid,  288. 
Harris  v.  Fly,  357,  392. 

"      v.  De  Wolf,  276. 

"       v.  Clark,  417. 
Harrison  v.  Nixon,  60. 
"        v.  Sterry,  276. 


XX 


TABLE  OF  CASES. 


Harrison  v.  Rowley,  3G0,  3G1. 
Hart  v.  Coltrain,  148. 

"     v.  Marks,  394. 
Hardwick  v.  Thurston,  355. 
Harker  v.  Newborn,  91. 
Havens  v.  Yan  Denburgh,  127. 

"       v.  Havens,  132. 

"       v.  Foster,  133. 

"       matter  of,  260. 
Hallet  v.  Hare,  403. 

"      matter  of,  369. 
Hall  v.  McLaughlin,  342. 
Hawley  v.  James,  364. 
Harvey  v.  Olmstead,  371. 
Hayner  v.  James,  161. 
Hancock  v.  Podmore,  270. 
Heath  v.  Dendy,  381. 
Henry  v.  Bowers,  136. 

"      v.  Bishop,  106. 
Hensloe's  case,  144. 
Hepburn  v.  Hepburn,  390. 
Hewitt  v.  Hewitt,  323. 
Hemiup,  matter  of,  39. 
Higgins  v.  Higgins,  264. 
Hinton  v.  Pinke,  381. 
Hix  v.  Whittemore,  79. 
Hobson  v.  Blackburn,  60. 
Hodges,  matter  of,  448. 
Hoes  v.  Van  Hoesen,  358,  393. 
Holmes  v.  Cook,  136,  224,  342. 

"       v.  Holmes,  94. 

"       v.  Seeley,  444. 
Hollenbeck  v.  Fleming,  106. 
Hone  v.  Fisher,  288. 

"      v.  Van  Sbaick,  369. 
Horton  v.  Horton,  328. 
House  v.  House,  258,  260. 
Howard  v.  Papera,  136. 

"        v.  Moffat,  387. 
Hubbard  v.  Hubbard,  134,  138,  167. 
Hubbell  v.  Coudy,  279. 
Humphreys  v.  Humphreys,  147,  351. 
Hunter  v.  United  States,  276. 
Hurst  v.  Beach,  363. 
Hurtin  v.  Proal,  402. 
Hyde  v.  Hyde,  468. 

"     v.  Stone,  443. 


Ingraliaro  v.  Wyatt,  87. 

Irving  V.  De  Kay. 

Isham  v.  Gibbon,  50,  163,  165. 


Jackson  v.  Aspell,  465. 


Jackson  v.  Babcock,  110. 

"       v.  Betts,  126. 

"       v.  Bull,  371. 

"       v.  Cohens,  126. 

"       v.  Christman,  179. 

"       v.  Combs,  443. 

"       v.  Delancy,  370. 

"       v,  De  Watts,  444. 

"       v.  Embler,  370. 

"       v.  Halloway,  123. 

"       v.  Harris,  371. 

"       v.  Irwin,  321,  324. 

"       v.  King,  68,  73. 

"       v.  Kniffin,  89. 

"       v.  Merrill,  110,  370. 

"       v.  Potter,  123. 

"       v.  Randall,  465. 

"       v.  Robinson,  308. 

"       v.  Totten,  467. 

"       v.  Van  Dusen,  74,  98,  105. 

"       v.  Whitehead,  141. 

"       v.  Wells,  370. 
James  v.  James,  394. 
Jaunccy  v.  Thorn,  109,  179. 
Jaques  v.  Methodist  E.  Church,  93. 
Jennings  v.  Gallimore,  376. 
Johnson  v.  Baker,  272. 
Jones  v.  Beytash,  210. 

K 

Kaine  v.  Masterton,  328. 

"      v.  Fisher,  253,  256,  260. 
Keane,  in  the  goods  of,  200. 
Kearney  v.  Whitmark,  100,  101. 
Kellett  v.  Rathbun,  157,  422,  424,  427, 

428. 
Kelly  v.  Powlett,  372. 
Kellogg,  Matter  of,  451. 
Kelsey  v.  Western,  393. 
Ker  v.  Moon,  156,  168. 
Kenny  v.  Jackson,  246. 
Keeney  v.  Whitmarsh,  158. 
Kidd  v.  Chapman,  299. 
The  King  v.  Raines,  135. 
King  v.  Strong,  394. 
Kindleside  v.  Harrison,  91,  182. 
Kirby  v.  Turner,  224,  452,  455. 

"      v.  Potter,  351. 
tas  v.  Gardner,  446. 
Kinapp  v.  The  Public  Administrator, 

252. 
Knickerbacker  v.  De  Freest,  159,  42o. 
Kohler  v.  Knapp,  149.  158. 
Kooystra  v.  Buyskes,  209. 


TABLE  OF  OASES. 


xxi 


Lambcll  v.  Lambell,  L26. 
Langdon  v.  Astor's  Ex'rs,  131,  124. 
Larkin  v.  Randall,  31. 
Larker  v.  Larker,  363. 

Larpent  v.  Sindey,  168. 
Lawrence  v.  Lawrence,  142,  145. 

"         v.  Brown,  313. 

"         v.  Miller,  329. 

"         v.  Embree,  391. 
Laycroft  v.  Simmons,  86. 
Le  Briton  v.  Fletcher,  179. 
L'Amoreux  v.  Crosby,  89,  115. 
Lemann  v.  Bonsall,  65. 
Leonard  v.  Morris,  298. 
Lewis  v.  Lewis,  100,  102. 

»      v.  Darling,  329,  393. 
Livingston  v.  Newkirk,  33(3. 
Lillie  v.  Lillie,  126. 
Lockwood  v.  Stockholm,  190,  420. 
Lupton  v.  Lupton,  291,  328,  329,  388, 

390,  392,  393. 
Lush  v.  Alburtis,  155. 
Lynn  v.  Beaver,  01. 
Lyon  v.  Smith,  106. 

M 

Major  v.  Williams,  121. 
Mandeville  v.  Mandeville,  136,  137. 
Manhattan  v.  Everton,  280. 
Mann  v.  Mann,  369,  372. 
Maples  v.  Howe,  324,  329. 
Marre  v.  Gonochio,  267. 
Marsh  v.  Evans,  382. 
Marsh  v.  Wheeler,  357. 

"      v.  Tyrrell,  95. 
Marquis  of  Winchester's  case,  74,  87. 
Marston  v.  Roe,  128. 
Marriot  v.  Marriot,  229. 
Marvin  v.  Stones,  261,  262. 
Masters  v.  Masters,  271,  363,  372. 
M'Kay  v.  Green,  393. 
McLoskey  v.  Reid,  384,  418. 
McWhorter  v.  Benson,  429. 
McAdam  v.  Walker,  78. 
McMahon  v.  Harrison,  136,  137. 
McCorker  v.  Golden,  190,  191,  399. 
McCormick,  ex  parte,  59,  165. 
McDonough  v.  Loughber,  176. 
McCartee  v.  Camel,  299. 
McNamara  v.  Dwyer,  406. 
Mason  v.  Jones,  233,  369. 
Mersereau  v.  Ryers,  298. 
Metzger  v.  Metzger,  432. 
Metcalf,  in  the  goods  of,  186. 


Miller  v.  Miller,  91. 

"     v.  Feckle,  97. 
Milts  v.  Boyden,  133. 
Mills  v.  Duryec,  280. 
Miichouse  v.  Scaife,  329. 
Minkler  v.  Minkler,  126. 
Mitchell  v.  Blair,  129. 
Moers  v.  White,  30,  133,  308,  317. 
Mollan  v.  Grilliths,  287. 
Montgomery  v.  Dunning,  267. 
Mootrie  v.  Hunt,  221. 
Moore  v.  Moore,  314. 
Morrell  v.  Dickey,  168,  400. 

"     ex  parte,  138. 
Mountain  v.  Bennett,  90,  92. 
Morris  v.  Mowat,    315. 

"      v.  Kent,  302. 
Mounsey  v.  Blamire,  376. 
Mowatt  v.  Carow,  375. 
Muir  v.  The  Trustees  of  the  L.  and  W. 

Assylum,  226. 
Mynn  v.  Robinson,  95. 

N 

Nan  Mickell,  matter  of,  130. 

Needham  v.  Ide,  180. 

Nelson  v.  McGiffert,  109,  122,  179. 

Newell  v.  Weeks,  151. 

Newkirk  v.  Newkirk,  371. 

Newton  v.  Pope,  182. 

New  York  P.  and  D.  Establishment 

v.  Fitch,  461. 
Nichols  v.  Chapman,  281,  290. 

"       v.  Osborn,  359. 
Nicoll,  matter  of,  446. 

0 

O'Brien  v.  Hagan,  97. 
Odell  v.  Buck,  68,  73. 
Ogden  v.  Smith,  167,  341. 
Ogilvie  v.  Hamilton,  50. 
Ognell,  Andrew's  case,  128. 
Onions  v.  Tyren,  124. 
O'Neal  v.  Farr,  133. 
Orr  v.  Kaines,  246. 


Palmer  v.  Trevor,  387. 

Paice  v.  The  Archbishop  of  Canter 

bury,  272. 
Park  v.  Hardey,  465. 
Parker  v.  Gainer,  284. 

"      v.  Bogardus,  370. 

"      matter  of,  419. 


xxu 


TABLE  OF  CASES. 


Parks  v.  Parks,  369. 

Parker's  Executors  v.  Gaines,  298. 

Patterson  v.  Ellis,  351. 

Pawling  v.  Bird,  279. 

Payne  v.  Mathews,  335. 

Peacock  v.  Monk,  93. 

Pearson  v.  Pearson,  391. 

Peebles  v.  Gase,  179. 

Peebles,  appeal  of,  227,  229. 

People  v.  Albany  Mayor's  Court,  286. 

"      v.  Albany  County  Judges,  299. 

"      v.  Barnes,  35,  225. 

"      v.  Corliss,  225. 

"      v.  Chegaray,  446. 

"      v.  Eastwood,  182. 

"      v.  Graham,  287. 

"      v.  Gould,  223,  225. 

"      v.  McDonald,  225,  246,  266. 

"      v.  Mercein,  446. 

"      v.  Pelham,  264. 

"      v.  Roo-ers,  440. 

"      v.  Rundle,  287. 
Perkins  v.  Cottrel,  94. 

"       v.  Miehlethwaite,  354. 
Perrott  v.  Perrott,  124. 
Petrie  v.  Shoemaker,  68. 
Peters  v.  The  Public  Administrator, 

203. 
Pew  v.  Hastings,  49. 
Pelletreau  v.  Rathbone,  420. 
Phillips  v.  Bignell,  245,  246,  263. 
Pitt  v.  Woodham,  246. 
Pierce,  matter  of,  446. 
Plume  v.  Beale,  226. 
Pond  v.  Curtis,  450. 
Poole  v.  Richardson,  179. 
Price  v.  Dewhurst,  60, 
Pratt  v.  Jenkins,  372. 
Prince  v.  Hazleton,  64,  167. 
Public  Administrator  v.  Watts,  48,  231. 
"  "  v.Peters,195,198. 

"  v.  Burdell,  222. 

"  "  v.  Hughes,  403. 

Pumpelley  v.  Tinkham,  140. 
Purse  v.  Snaplin,  350. 
Porter  v.  Tournay,  372. 

R 

Randall,  in  the  goods  of,  186,  200. 

Rathbone  v.  Dyckman,  369. 

Rattoon  v.  Overacker,  188. 

Rafferty  v.  Clark,  393. 

Rea  v.  McEachron,  39. 

Reid  v.  Vanderheyden,  42,  183. 

Remsen  v.  Brinkerhoof.  98,  101. 


Renwick  v.  Renwick,  191. 

"        matter  of,  48,  317,  335. 
Reynolds  v.  Collins,  296. 

"        v.  Reynolds,  328,  393. 
Rex  v.  Bettesworth,  191,  207,  210. 
Riebens  v.  Hicks,  103,  108. 
Richards  v.  Mumford,  123,  126. 
Rice  v.  Oatheld,  179. 
Rich  v.  Corkell,  228. 
Richardson  v.  Judah,  346i 
Rider  v.  "Wager,  366. 
Roberts,  matter  of,  59. 
Robertson  v.  McGeoch,  143. 

"         v.  Caw,  358. 
Rogers  v.  Pitts,  122. 

"      v.  King,  418,  419. 

"       v.  Hosack's  Ex'rs,  286. 

"      v.  Rogers,  318,  430,  431. 
Roosevelt  v.  Mark,  318. 
Rose  v.  Rose,  132. 

"     v.  Bartlett,  138. 
Rudden  v.  McDonald,  101. 
Russell  v.  Lane,  297. 
Rutherford  v.  Rutherford,  107« 
Rymer  v.  Clarkson,  113. 

s 

Sanford  v.  Granger,  316,  345,  309. 
Savage  v.  Blythe,  155,  195. 
SattertlrWaite  v.  Powell,  192. 
Scruby  v.  Fordham,  78,  122,  124,  125. 
Scott  v.  Rhodes,  104. 
Scofield  v.  Scofield,  253,  256,  257. 
Schermerhorn  v.  Barhydt,  298. 
Seaman  v.  Duryea,  35,  439,  463. 
Seabury  v.  Brown,  278. 
Sears  v.  Mark's  assignees,  336. 
Seguine  v.  Seguine,  101,  108,  109. 
Seymour  v.  Van  Wvck,  103. 

"       v.  Butler,  378,  391,  407,  410. 
Sharp  v.  Pratt,  341. 
Sheldon  v.  Wright,  35,  201,  309,  310, 

312. 
Sheldon  v.  Bliss,  253,  255. 
Shelly's  case,  270. 
Sherman  v.  Ballou,  447,  454. 
Shewen  v.  Yanderhorst,  317. 
Shirt  v.  Westby,  382. 
Shirley  v.  Shirley,  387. 
Scholl  v.  Scholl,  352. 
Shook  v.  Shook,  136,  139,  212. 
Shultz  v.  Pulver,  42,  182. 
Shumway  v.  Cooper,  190,  191. 
Sibley  v.  Cook,  354. 

"      v.  Percy,  350,  351. 

"      v.  W  apple,  309. 


TABLE  OF  CASES. 


XXUl 


Skeffington  v.  White,  19SL 
Skidmore  v.  Eomaine,  317. 
Small  v.  Small,  92. 
Smith  v.  Gary,  50. 

"      v.  Cunningham,  123. 

"      v.  Kearney,  368. 

"      v.  Lawrence,  288. 

"      v.Smith,  374. 

"     v.  Van  Keuren,  416. 

"      v.  Wait,  123. 
Snyder  v.  Snyder,  94. 

v.  Jackson,  342,  345,  419,  420. 

"     v.  Beekman,  36. 

"      v.  Punter,  270. 
Southmead,  in  the  goods  of,  207. 
Stanton  v.  WetherWax,  66. 
Sparrow  v.  Hardcastle,  131. 
Spear  v.  Finkham,  388. 
Stewart's  Ex'r  v.  Lispenard,  67,  68, 

73,  87,  182. 
Stockdale  v.  Bushby,  376. 
Stone  v.  Damont,  89. 

"      v.  Morgan,  413,  421. 
Strathmore  v.  Bowes,  134. 
Strong  v.  Wilkins,  67. 
Sweezey  v.  Willis,  195,  196. 

T 

Taylor  v.  Bryden,  279. 

»      v.  Delancy,  218,  219. 

"       v.  Morris,  341. 

"      v.  Wendel,  289. 

Texador,  matter  of,  210. 

Thomas  v.  Cameron,  147. 

"       v.  Stevens,  376. 

Thompson,  ex  parte,  167. 

v.  Thompson,  263,  364,413. 
Thelusson  v.  Smith,  276. 
Thorold  v.  Thorold,  231. 
Thyne  v.  Stanhope,  123. 
Tifft  v.  Porter,  349,  391. 
Tilford  v.  Morrison,  247. 
Tole  v.  Hardy,  377,  379,  380,  392. 
Tonnele  v.  Hall,  99. 
Tourton  v.  Hower,  163. 
Treat  v.  Fortune,  199,  318,  368,  430. 
Trevelyan  v.  Trevelyan,  125. 
Tucker  v.  Phelps,  166. 

"       v.  Westgarth,  208. 
Tummalty  v.  Tummalty,  193. 
Tunison  v.  Timison,  103. 

u 

Utterton  v.  Bobins,  133. 
"         v.  Mairs,  135. 


United  States  v.  Fisher,  275. 
"  "      v.  Hoe,  276. 

"  "      v.  Howland.  276. 

"  "      v.  State  Bank  of  N.  C. 

276. 

V 

Van  Alst  v.  Hunter,  68.  85. 
Van  Bramer  v.  Hoffman,  390. 
Vanderheyden  v.  Reid,  26,  28,  46. 

Vanderpoel  v.  Van  Valkenburgh,  61, 

146,  226,  228. 
Van  Cortland  v.  Kip,  132,  133. 
Van  Kleek  v.  The  Reformed  Dutch 

Church,  394. 
Van  Orden  v.  Van  Orden,  3G3. 
Van  Ornam  v.  Philips,  282. 
Van  Vechten  v.  Van  Vechten,  373. 
Van  Vleek  v.  Burroughs,  46,  299. 
Van  Wert  v.  Benedict,  95. 
Van  Wyck  v.  Seward,  401. 
Van  Wyck,  matter  of,  341,  463. 
Vaux  v.  Henderson,  376. 
Vermilyea  v.  Beaty,  141,  142. 
Vreedenburg  v.  Calf,  49. 

w 

Wadham  v.  Am.  Home  Miss.  Society, 

93,  228. 
Wait  v.  Wait,  194,  399. 
Walker  v.  Woolaston,  219. 

"       v.  Witter,  279. 

"       v.  Schuyler,  468. 
Watts  v.  The  Public  Administr'r,  104. 
Walsh  v.  Ryan,  171. 
Walton  v.  Walton,  130,  349,  351,  353, 

401. 
Warwick  v.  Greville,  198. 
Waters  v.  Cullen,  82,  95.^ 
Watkins,  matter  of,  31,  470. 
Waterman  v.  Whitney,   121. 
Watkins  v.  Cheek,  357. 
Webster  v.  Webster,  394. 
Weir  v.  Fitzgerald,  86. 
Wetdrfll  v.  Wright,  208. 
Wever  v.  Marvin,  142. 
Weston  v.  Weston,  148. 
West  v.  Will.y,  215. 

"     v.  Moore,  373. 
Western  v.  Romaine,   42,    184,  340, 

442. 
Weedv.  Ellis,  451. 
Westervelt  v.  Gregg,  43,  94,  413,  416, 

421,  428. 
Whitmore  v.  Foose,  295.  297. 


XXIV 


TABLE  OP  CASES. 


White  v.  White,  80,  91. 
"      v.  Bullock,  429. 
«      v.Parker,  t49. 

"      v.  Storey,  468. 
Whittaker,  Matter  of,  446. 
Whitbeck  v.  Patterson,  101,  103,  233. 
Williamson   v.   Williamson,   52,   381, 

390. 
Williamson  v.  Driver,  75. 
Williams  v.  G-oude,  92. 
v.  Walker,  198. 
»        v.  Fitch,  233. 
"        In  the  goods  of,  246. 
"        v.  Purdy,  318, 368,  428,  430. 
"        v.  Attleborough,  327. 
"        v.  Crary,  365. 


Williams  v.  Williams,  369. 
Wilson  v.  ] Jap tist  Society,  35. 

"      v.  Moran,  115. 

"      v.  Wilson,  338. 
Wilcox  v.  Smith,  295,  317,  417,  428, 

429,  430,  433. 
Wilkes  v.  Harper,  298. 
Willoughby  v.  McCluer,  247. 
Witter  v.  Mott,  133. 
Wickwire  v.  Chapman,  156,  218. 
Wills  v.  Rich,  219. 
Winne  v.  Van  Schaick,  286. 
Wood  v.  Yandenburgh,  382. 

"      v.  Wood,  136,  364. 
Woodruff  v.  Cox,  239. 
Wolfe  v.  Van  Nostrand,  369. 


ERRATA. 

Page    72,  line  26,  for  "injunction,"  read  inquisition. 
"     107,     "       2,  after  "  Rutherford"  add  (1  Denio. 
"     118,     "     13,  for  "1853,"  read  1813. 
"     179,     "     13,  dele  "that." 
"     224,     "      6,  for  "  form,"  read  forms. 


53.) 


LAW  OE  EXECUTORS. 


PART  I. 


OF  THE  COURT  HAVING  ORIGINAL  JURISDICTION  IN  THE  STATE  OF  NEW 
YORK,  IN  MATTERS  TESTAMENTARY,  AND  OF  INTESTACY. 


Section  I. 

Of  the  Courts  having  jurisdiction  to  administer  the  estates  of 
deceased  persons,  under  the  Colony  and  at  the  close  of  the 
Revolution. 

BEFORE  the  American  Revolution,  the  jurisdiction  of  wills 
and  intestacies  belonged,  in  the  colony  of  New  York,  to  the 
prerogative  court,  of  which  the  governor  for  the  time  being  was 
ex  officio  the  judge.  Though  the  extent  and  limitations  of  this 
authority  are  not  very  accurately  known,  and  are  supposed  never 
to  have  been  defined  or  regulated  by  any  statute,  yet  in  the  pro- 
ceedings of  this  as  well  as  other  courts,  the  practice  of  the  corres- 
ponding English  tribunals  was  imitated,  and  their  customs  and 
forms  generally  adopted.  {Smith's  History  N.  Y.  383,  389. 
Vanderheyden  v.  Reid,  1  Hopkins,  410,  411.  Revisers'  Notes, 
3  R.  S.  2d  cd.  679.)  The  jurisdiction  itself  was  declared  by  an 
act  of  the  colonial  government  of  the  11th  November,  1G92,  to  be 
4 


26  JURISDICTION. 

vested  in  the  governor,  or  in  such  persons  as  he  should  delegate 
under  the  seal  of  the  prerogative  court,  (Bradford's  Col.  Laws,  16.) 
It  was  ordinarily  exercised,  during  the  period  of  the  colony,  by  a 
delegate  appointed  by  the  governor,  under  the  seal  of  the  prerog- 
ative office.  (Smith's  History  N.  Y.  383.  1  R.  L.  1813,  p.  454, 
note.) 

The  common  law  of  England  was  generally  received  as  binding 
on  the  colony,  together  with  such  statutes  as  were  enacted  before 
it  had  a  legislature  of  its  own;  but  the  courts  exercised  a  sove- 
reign authority  in  determining  what  part  of  the  common  law  and 
statute  law  should  be  extended,  and  what  should  be  rejected  as 
inapplicable  to  their  circumstances  and  condition.  (Smith's  His- 
tory N.  Y.  372.) 

The  first  constitution  of  this  state,  adopted  in  1777,  expressly 
recognized  the  court  of  probates  as  a  subsisting  tribunal,  and 
directed  that  the  clerk  of  that  court  should  be  appointed  by  the 
judge  thereof.  (Const,  of  1777,  §  27.)  By  other  provisions  of 
that  instrument  the  judge  of  the  court  of  probates  was  appointed 
by,  and  held  his  office  during  the  pleasure  of  the  council  of  appoint- 
ment. The  act  to  organize  the  government,  under  the  constitution, 
did  not  pass  until  the  16th  March,  1778.  (1  Greenl.  17.)  By 
that  act  it  was,  amongst  other  things,  enacted,  that  the  judge  of 
the  court  of  probate  should  be  vested  with  all  and  singular  the 
powers  and  authorities,  and  have  the  like  jurisdiction  in  testamen- 
tary matters,  which,  while  this  state,  as  the  colony  of  New  York, 
was  subject  to  the  crown  of  Great  Britain,  the  governor  or  com- 
mander in  chief  of  the  colony,  for  the  time  being,  had  and  exer- 
cised, as  judge  of  the  prerogative  court,  or  court  of  probates  of 
the  said  colony,  except  as  to  the  nomination  and  appointment  of 
surrogates  of  the  several  counties,  who  were  required  to  be  ap- 
pointed by  the  council  of  appointment,  and  commissioners  under  the 
great  seal.  By  the  act  of  1784,  (1  Greenl.  149,)  instituting  the 
court  for  the  trial  of  impeachments  and  the  correction  of  errors, 
an  appeal  was  given  to  that  court  from  the  court  of  probates  in 
like  manner  as  from  the  court  of  chancery. 

The  act  of  1778,  before  cited,  directed  all  letters  of  administra- 
tion to  be  granted  by  the  judge  of  probates,  and  all  citations  and 
other  processes  issuing  out  of  the  same  court,  to  run  in  the  name 


JURISDICTION.  27 

of  the  people  of  this  state,  and  be  tested  in  the  name  of  the  judge 
of  the  said  court. 

The  constitution  of  1777  further  provided  that  such  parts  of 
the  common  law  of  England  and  the  statute  law  of  England  and 
Great  Britain,  and  of  the  acts  of  the  legislature  of  the  colony  of 
New  York,  as  together  did  form  the  law  of  the  said  colony  on  the 
19th  day  of  April,  1775,  should  be  and  continue  the  law  of  this 
state,  subject  to  such  alterations  and  provisions  as  the  legislature 
of  the  state  should  from  time  to  time  make,  concerning  the  same. 
It  excepted  such  parts  of  the  common  law  and  statutes  as  might 
be  construed  to  establish  or  maintain  any  particular  denomination 
of  christians  or  their  ministers,  or  concerned  allegiance  formerly 
yielded  to  the  king  of  Great  Britain,  or  as  were  repugnant  to  that 
constitution. 

This  feature  of  the  constitution  was  not  introductory  of  any  new 
principle,  but  was  declaratory  of  the  doctrine  contended  for  by  the 
colonists,  that  the  common  law,  so  far  as  applicable  to  their  cir- 
cumstances, was  their  birthright.  The  principle  has  been  repeated 
both  in  the  constitution  of  1822  and  1846.  It  is  merely  a  repe- 
tition of  the  great  truth,  that  on  the  settlement  of  a  new  territory 
by  a  colony  from  another  country,  especially  when,  as  in  this  case, 
the  colonists  continue  subject  to  the  same  government,  they  carry 
with  them  the  general  laws  of  the  mother  country,  which  are  ap- 
plicable to  the  situation  of  the  colonists  of  the  new  territory; 
which  laws  thus  become  the  laws  of  the  colony  until  they  are 
altered  by  common  consent,  or  by  legislative  enactment.  {Bogar- 
dus  v.  Trinity  Church,  4  Paige,  198.  Commonwealth  v.  Leach, 
1  Mass.  R.  60.  Canal  Commissioners  v.  The  People,  5  Wend. 
445.     Commonwealth  v.  Knowlton,  2  Mass.  534.) 

Although  the  act  of  1778,  recognized  the  office  of  surrogate, 
yet  it  does  not  appear  that  that  court  was  organized  under  the 
constitution,  until  the  year  1787.  It  is  probable  that  the  duties 
were  performed  either  by  the  judge  of  the  court  of  probates  or  by 
surrogates,  during  the  intervening  time,  under  the  colonial  laws, 
repealed  by  the  19th  section  of  the  act  of  1787. 

On  the  20th  of  February,  1787,  an  act  was  passed,  entitled  an 
act  for  settling  intestates'  estates,  proving  wills  and  granting  ad- 
ministrations.    (1  Greenl.  363.)     It  was  the  statute  of  distribu 


28  JUEISDICTIOF. 

tions  of  that  day.  The  6th  section  provided  for  the  appointment 
by  the  governor  and  council,  of  surrogates  for  the  several  counties 
of  the  state,  and  conferred  upon  such  surrogates,  power  to  take  the 
proof  of  wills,  testaments  and  codicils,  of  all  persons  dying  in  the 
several  counties,  for  which  such  surrogates  should  be  respectively 
appointed,  to  make  and  issue  probate  thereof,  and  to  grant  letters 
testamentary  thereon,  and  to  grant  administration,  with  the  will 
annexed,  and  in  cases  of  intestacy.  They  were  also  authorized  to 
record  wills  proved  before  them,  with  the  proof  thereof,  and  all 
letters  testamentary  and  of  administration,  by  them  issued  and 
granted,  in  books  to  be  provided  at  their  own  expense;  which 
records  were  declared  to  be  of  the  same  force  and  effect,  as  the  like 
records  in  the  office  of  the  judge  of  the  court  of  probates.  They 
were  also  required  to  cause  a  seal  of  office  to  be  made  at  their  own 
expense,  with  a  suitable  device  thereon. 

It  is  said  by  Chancellor  Sanford,  in  Vanderheydeu  v.  Reid, 
1  Hopkins,  411,)  that  the  records  of  the  prerogative  court  of  the 
colony  cannot  now  be  found.  We  can,  therefore,  only  learn  by 
tradition  and  by  inference  from  subsequent  statutes  the  mode  of 
procedure  in  that  court.  The  20th  section  of  the  act  of  1787, 
(1  Greenl.  368,)  throws  some  light  on  this  subject.  By  that  sec- 
tion it  was  enacted  that  the  courts  of  the  said  surrogates,  and  the 
court  of  probates,  in  the  matters  submitted  to  their  cognizance 
respectively,  by  that  act,  should  proceed  according  to  the  course  of 
the  courts  having  by  the  common  law,  jurisdiction  of  the  like 
matters,  provided  that  the  same  should  not  be  construed  to  extend 
to  the  inflicting  any  ecclesiastical  pains  or  penalties  whatsoever. 

The  matters  submitted  to  the  consideration  of  the  courts,  by 
that  act,  were  in  relation  to  testamentary  matters  and  matters  of 
intestacy,  and  of  the  description  of  cases  which  at  common  law 
were  administered  by  the  ecclesiastical  courts.  It  is  probable  that 
the  business  was  very  loosely  conducted  by  some  of  these  courts. 
In  the  preamble  to  the  act  of  1792,  concerning  administrations  and 
escheats,  (2  Greenl.  420,)  it  is  recited  that  administrations  had 
been  frequently  granted  in  this  state,  upon  the  mere  suggestion 
of  the  party  applying  for  the  same,  without  due  proof  of  the  death 
of  the  person  upon  whose  estate  they  were  granted ;  and  it  had 
happened  that  administrations  had  been  granted  upon  estates  of 


JURISDICTION".  29 

persons  who  were  then  living  and  residing  within  this  state,  and 
administrations  were  frequently  granted  to  persons  in  no  wise 
related  to  the  intestate,  and  who  procured  administrations  only 
with  a  view  of  appropriating  the  estates  of  the  intestate  to  their 
own  use,  from  which  practices  great  inconveniences  were  likely  to 
ensue,  for  remedy  whereof  it  was  enacted  that  no  letters  of  admin- 
istration should  thereafter  be  granted  by  the  judge  of  probates  or 
by  any  surrogate,  upon  the  estate,  goods,  chattels  or  credits  of  any 
person,  represented  as  having  died  intestate,  until  due  proof  be 
made  before  the  said  judge  or  surrogate,  to  his  satisfaction,  that 
such  person  was  dead,  and  died  intestate.  The  statute  also  pro- 
vided that  on  the  application  for  letters  of  administration  upon  the 
estate  of  an  intestate,  by  a  person  not  entitled  to  the  same  as  next 
of  kin,  the  judge  or  surrogate  should  issue  a  citation  to  the  next 
of  kin,  before  granting  such  letters,  summoning  them  to  appear 
and  show  cause  why  the  same  should  not  be  granted.  The  statute 
contains  other  provisions  for  causing  notice  to  be  given  in  case  of 
the  non-residence  of  the  next  of  kin,  or  in  case  there  are  no  such, 
but  as  they  are  superseded  by  the  existing  provisions,  which  will 
be  noticed  in  their  proper  place,  it  is  unnecessary  to  mention  them. 

Section  II. 

Of  the  Courts  having  jurisdiction  to  administer  the  estates  of 
deceased  persons,  from  the  close  of  the  revolution  to  the  aboli- 
tion of  the  Court  of  Probates,  in  1823. 

During  the  period  embraced  in  the  preceding  section,  the  juris- 
diction of  the  court  of  probates  and  of  surrogates,  seems  to  have  been 
confined  solely  to  testamentary  matters  and  matters  of  intestacy. 
By  the  act  of  1787,  (1  Greenl.  367,)  the  judge  of  the  court  of 
probate  was  empowered  to  call  administrators  to  account  for  and 
touching  the  estates  of  any  person  dying  intestate,  and  to  decree 
distribution,  and  to  compel  such  administrators  to  observe  and  pay 
the  same.  He  was  also  authorized  to  hear  and  determine  all 
causes  touching  any  legacy  or  bequest  in  any  last  will  and  testa- 
ment payable  out  of  the  personal  estate  of  the  testator,  and  to 
decree  and  compel  payment  thereof,  with  a  right  of  appeal  to  the 
party  aggrieved.     But  this  jurisdiction  was  not  conferred  upon 


30  JURISDICTION. 

surrogates  until  the  law  of  27th  March,  1801.  (1  K.  fy  R.  320.  1  V. 
N.  iSf'  W.  448,  §  11.)  The  same  statute  also  gave  an  appeal  from 
the  decree  of  the  surrogate  to  the  judge  of  the  court  of  probate, 
provided  such  appeal  was  entered  within  fifteen  days  next  after 
the  sentence,  decree  or  order  appealed  from.  It  was  doubtless 
found  to  be  oppressive  to  require  parties  to  attend  the  settlement 
of  estates  at  the  seat  of  government,  from  remote  parts  of  the 
state. 

By  the  act  of  27th  March,  1801,  (1  K.  fy  R.  323,)  the  execu- 
tor or  administrator,  whose  testator  or  intestate  should  have  died 
seized  of  any  real  estate,  on  discovering  that  the  personal  estate 
of  such  testator  or  intestate  was  insufficient  to  pay  his  debts,  was 
authorized  to  apply  to  the  court  of  probates  or  the  surrogate  of 
the  county  in  which  probate  or  administration  was  granted,  for 
authority  to  sell  so  much  thereof  as  should  be  necessary  to  pay  his 
debts.  This  statute  conferred  a  jurisdiction  upon  these  courts  un- 
known to  the  common  law.  Nor  was  it,  as  originally  framed,  ac- 
companied with  necessary  safeguards  against  abuses.  It  did  not 
limit  the  time  within  which  the  application  could  be  made.  Hence, 
when  stale  and  dormant  demands  were  awakened  into  life,  in  order 
to  reach  the  real  estate  of  the  deceased  by  an  unscrupulous  per- 
sonal representatives,  a  resort  was  had  to  the  court  of  chancery  for 
relief.  (Moers  v.  White,  6  John.  Ch.  360.)  The  evils  to  which 
it  led  it  will  be  seen  in  the  next  section,  have  been  remedied  by 
our  existing  legislation  on  the  subject.  As  a  security  against 
fraud  or  collusion,  the  revised  law  of  1813,  (1  R.  L.  451,  §  24,) 
required  that  one  or  more  discreet  freeholders  should  be  appointed 
by  the  surrogate  to  unite  with  the  executors  or  administrators  in 
the  conveyance  on  sales  by  order  of  the  court.  This  proved  to  be 
a  useless  requirement,  and  was  repealed  in  1819.  {Laws  o/1819, 
p.  215,  §  4.) 

Another  subject  of  jurisdiction  was  added  to  the  surrogate  by 
the  act  of  April  5,  1802;  (3  Webster,  158;  1  R.  L.  of  1813, 
p.  454;)  the  allowance  and  appointment  of  guardians  for  infants. 
It  has  been  supposed  by  elementary  writers  that  the  ecclesiastical 
courts  had  a  right  to  appoint  a  guardian  to  the  personal  estate  of 
the  infant.     (Swinburne,  210.     Reeve's  Dom.  R.  317.)     In  Buck 


JURISDICTION.  31 

v.  Draper,  (3  Atk.  631,)  Lord  Hardwicke  expressed  his  surprise 
that  ecclesiastical  courts  in  the  country  should  take  upon  them 
to  appoint  guardians  ex  officio,  without  any  suit  instituted  for  that 
purpose,  and  by  that  means  break  in  upon  the  jurisdiction  of  the 
court  of  chancery  with  regard  to  the  guardianship  of  infants.  The 
jurisdiction  thus  conferred  by  the  act  of  1802  did  not  extend  to 
the  judge  of  the  court  of  probates  ;  nor  did  it  confer  on  the  surro- 
gate any  jurisdiction  over  the  guardian  as  a  trustee;  or  power  to 
remove  him.  or  call  him  to  account.  The  chancellor  exercised  that 
authority  by  his  common  law  powers.  {Ex  parte  Crumb,  2  John. 
Ch.  R.  439.) 

By  the  act  of  April  7,  1806,  (1  R.  L.  of  1813.  p.  60,)  the  sur- 
rogate was  authorized  in  certain  cases  to  appoint  commissioners 
for  the  assignment  of  dower  to  the  widow.  The  act  made  no  pro- 
vision for  trying,  before  the  surrogate,  the  title  to  dower,  and  the 
admeasurement  was  held  not  to  affect  or  prejudice  the  right  to 
dower,  or  the  legal  or  equitable  bar  to  it.  (Matter  of  Watkins, 
9  John.  245.     Larkin  v.  Randall,  5  Cowen,  168.) 

Under  the  foregoing  statutes  it  was  no  doubt  well  held  by  the 
courts  that  the  surrogate's  court  was  a  court  of  inferior  and  lim- 
ited jurisdiction,  and  a  creature  of  the  statute ;  and,  therefore, 
that  those  claiming  under  its  decrees  must  show  affirmatively  that 
the  surrogate  had  authority  to  make  the  decree,  and  that  the  facts 
upon  which  he  acted  gave  him  jurisdiction  of  the  subject  matter, 
and  of  the  persons  before  him.  (Dakin  v.  Hudson,  6  Cowen, 
221.  Bloom  v.  Bur  dick,  1  Hill,  130.  Corwin  v.  Merritt,  3 
Barb.  S.  C.  R.  341.)  In  one  of  the  foregoing  cases  the  question 
was  one  of  pleading,  and  in  the  others  the  objection  arose  under 
proceedings  for  the  sale  of  real  estate  by  order  of  the  surrogate 
under  the  act  of  1813.  The  rule  is  the  same  with  respect  to  all 
courts  ;  their  judgments  in  cases  where  they  have  no  jurisdiction 
are  void,  with  only  this  difference,  that  the  jurisdiction  of  a  supe- 
rior court  will  be  presumed  until  the  contrary  appears:  whereas 
an  inferior  court  and  those  claiming  under  its  authority,  must 
show  that  it  had  jurisdiction.  (Per  Branson.  J.,  1  Hill  139.  Foot 
v.  Stevens,  17  Wend.  483.) 


32  JURISDICTION. 

Section  III. 

Of  the  Courts  having  jurisdiction  to  administer  the  estates  of 
deceased  persons  since  the  abolition  of  the  court  of  probates  in 
1823,  and  as  they  exist  at  the  present  time. 

The  constitution  -which  was  framed  in  1821  and  took  effect  fully 
on  the  1st  January,  1823,  was  the  commencement  of  great  and 
salutary  reforms  in  the  jurisprudence  of  this  state.  It  made  no 
special  provision,  however,  for  the  continuance  of  the  court  of  pro- 
bates, or  of  surrogates'  courts,  or  of  any  tribunal  having  jurisdiction 
over  the  estates  of  deceased  persons.  Like  the  constitution  of  1777, 
in  this  respect,  it  left  these  matters  to  the  discretion  of  the  legisla- 
ture. That  body  accordingly  on  the  21st  March,  1823,  {Laws  of 
1823,  p.  62,  ch.  70,)  by  act  of  that  date  abolished  the  court  of 
probates,  and  directed  that  its  records  should  be  deposited  and  safely 
kept  in  the  office  of  the  secretary  of  state.  It  directed  that  the 
jurisdiction  of  the  court  of  probate,  thus  abolished,  should  be  vested 
in  the  surrogate  of  any  county  wherein  the  personal  property  of 
the  deceased,  or  any  part  thereof,  might  be  at  the  time  of  his 
death  ;  and  that  he  should  proceed  in  the  manner  and  according 
to  the  powers  theretofore  used  and  exercised  by  the  judge  of  the 
court  of  probates.  It  required  the  surrogate  to  transmit  a  certified 
copy  of  the  will  so  proved  before  him  and  the  probate  thereof,  or 
of  the  letters  of  administration  so  granted,  to  the  secretary  of  this 
state,  to  be  by  him  filed  and  safely  kept  in  his  office.  It  gave  an 
appeal  from  the  decision  of  the  surrogate  to  the  chancellor,  and 
transferred  to  that  officer  all  appeals  then  pending  in  the  court  of 
probates.  And  it  provided  that  surrogates  should  thereafter  be 
appointed  in  the  manner  prescribed  by  the  constitution  for  the  ap- 
pointment of  judicial  officers,  and  should  hold  their  offices  for  four 
years,  unless  sooner  removed  by  the  senate  on  the  recommenda- 
tion of  the  person  administering  the  government  of  this  state.  The 
office  of  surrogate  thenceforth  became  an  important  one,  and  the 
court  held  by  him  the  only  court  of  original  jurisdiction  in  matters 
testamentary  and  of  intestacy.  Its  jurisdiction  was  general  as 
well  as  local.  It  was  entitled  to  the  same  presumptions  in  its 
favor  that  the  supreme  court  extended  to  the  courts  of  common 
pleas,  in  Foot  v.  Stevens,  (17  Wend.  483.) 


JURISDICTION.  33 

Notwithstanding  surrogates  were  required  by  the  laws  to  which 
reference  has  been  made,  to  record  in  proper  books,  all  Avills  proved 
before  them,  letters  testamentary  and  letters  of  administration  and 
of  guardianship,  and  all  orders  and  decrees,  it  was  found,  as  late  as 
in  1828,  that  this  duty  had  been  in  some  counties  in  a  great  meas- 
ure neglected.  To  remedy  this  inconvenience  as  far  as  practicable, 
the  legislature  in  that  year  enacted  that  it  should  be  the  duty  of 
the  surrogate  of  each  county  in  this  state,  to  record  in  books  to  be 
provided  for  that  purpose,  all  orders  and  decrees  made  by  any  of 
his  predecessors,  relating  to  the  sale  of  real  estate,  the  original  of 
which,  signed  by  the  surrogate  granting  the  same,  or  copies  thereof 
duly  authenticated,  should  be  in  his  office  and  not  recorded ;  and 
all  letters  testamentary  and  of  administration,  and  all  appointments 
of  guardians  made  by  any  such  predecessor  in  the  said  office,  which 
were  not  already  recorded.  He  was  also  required  to  cause  the 
books,  in  which  such  proceedings  were  recorded,  to  be  bound  in  a 
plain  and  substantial  manner,  to  be  correctly  paged  and  indexed, 
the  expense  of  which  was  to  be  audited  and  allowed  by  the  super- 
visors of  the  county.     {Laws  of  1828,  p.  136.) 

It  is  not  deemed  necessary  to  notice  the  other  acts  of  the  legis- 
lature in  relation  to  surrogates'  courts  between  the  year  1823  and 
the  adoption  of  the  revised  statutes  in  1830.  All  the  statutes  then 
in  force  on  the  subject  were  revised  and  consolidated,  with  such  im- 
provements as  experience  had  suggested.  The  system  then  inaugu- 
rated remains  as  the  basis  upon  which  the  subsequent  alterations  and 
amendments  have  been  built.  The  office  of  surrogate  now  rests 
upon  the  provisions  of  the  constitution  of  1840,  the  revised  stat- 
utes, and  the  subsequent  enactments  on  the  same  subject.  It  is 
proposed  in  the  remainder  of  this  section  to  treat  of  the  surrogate's 
court  under  the  existing  constitution  and  laws. 

And  first,  it  is  to  be  observed,  that  the  office  itself  was  abolished 
as  then  existing,  except  in  the  city  and  county  of  New  York,  where 
it  was  to  remain  till  otherwise  ordered  by  the  legislature.  The 
constitution  provides  for  the  election  of  a  county  judge,  who  should 
hold  the  county  court  and  perform  the  duties  of  the  office  of  sur- 
rogate. It  also  empowered  the  legislature  to  provide  for  the  elec- 
tion of  a  separate  officer  to  perform  the  duties  of  the  office  of 
5 


34  JURISDICTION. 

surrogates,  in  counties  having  a  population  exceeding  forty  thou- 
sand. (Const,  of  1846,  art.  6,  §  14.)  In  the  statute  relative  to 
that  subject,  the  officer  directed  to  be  elected  to  perform  the  duties 
of  the  office  of  surrogate,  was  denominated  "  Surrogate  "  of  their 
respective  counties.  (Laios  of  1847,  p.  308,  §  14.)  In  the  act  of 
1853,  (p.  1228,)  it  is  provided  that  in  those  counties  in  -which  the 
county  judge  is  also  surrogate,  he  may  be  named  and  designated 
simply  as  surrogate,  without  any  addition  referring  to  his  office 
as  county  judge ;  and  in  those  counties  where  the  surrogate  is  a 
distinct  officer,  the  county  judge  or  other  officer,  when  acting  as 
surrogate,  shall  be  designated  by  his  official  title,  with  the  addition 
of  the  words,  "  and  acting  as  surrogate." 

By  the  thirty-seventh  section  of  the  judiciary  act  of  1847,  (Laws 
of  1847,  p.  333,)  it  was  provided  that  the  county  judge  or  other 
officer  elected  to  perform  the  duties  of  the  office  of  surrogate,  and 
the  local  officers  elected  to  discharge  the  duties  of  county  judge 
and  surrogate,  when  acting  as  surrogate,  should  possess  the  same 
powers  and  perform  all  the  duties,  and  exercise  the  same  jurisdic- 
tion as  were  then  possessed,  performed  and  exercised  by  the  sur- 
rogates of  their  respective  counties,  so  far  as  should  be  consistent 
with  the  constitution,  and  the  provisions  of  that  act.  And  all 
laws  relating  to  the  jurisdiction,  powers  and  duties  of  surrogates 
and  surrogates'  courts,  and  their  proceedings,  were  declared  to  be 
applicable  to  said  judge  or  other  officer,  while  performing  the 
duties  of  the  office  of  surrogate,  so  far  as  the  same  could  be  so 
applied,  and  were  consistent  with  the  constitution,  and  the  provis- 
ions of  that  act. 

The  office  of  surrogate  was  duly  organized  under  the  present 
constitution,  in  the  city  and  county  of  New  York,  and  in  the  sev- 
eral other  counties  of  the  state.  It  is  not  deemed  material  in  this 
connection,  to  notice  the  special  legislation  on  this  subject,  as  to 
particular  counties.  We  are  treating  now  of  the  general  juris- 
diction of  the  court. 

Although  the  surrogate's  court  is  now  a  court  of  general  juris- 
diction, and  the  only  court  of  original  jurisdiction  in  matters  tes- 
tamentary and  of  intestacy,  and  although  it  possesses  a  seal  and 
is  required  to  keep  a  record  of  its  proceedings,  it  has  not  been 
treated  by  the  courts  as  a  court  of  record,  in  the  common  law  sense 


JURISDICTION.  85 

cf  that  term.  Hence  it  is  not  a  court  in  which  the  proceedings 
for  the  naturalization  of  aliens,  under  the  act  of  congress,  can  be 
conducted.  The  act  of  congress  calls  for  a  court  of  record,  having 
common  law  jurisdiction,  a  seal  and  a  clerk  or  prothonotary. 
(3  U.  S.  L.  477,  §  3  of  the  act  of  April  14, 1802.)  The  statutes 
of  this  state  nowhere  describe  it  as  a  court  of  record.  On  the 
contrary,  the  revised  statutes  denominate  it  a  court  of  peculiar 
and  special  jurisdiction,  and  describe  its  jurisdiction  in  the  same 
chapter,  with  other  courts,  which  are  confessedly  not  of  record. 
(2  R.  S.  220.)  The  same  section  which  defines  the  powers  of  the 
court,  directs  that  they  shall  be  exercised  in  the  cases  and  in  the 
manner  prescribed  by  the  statutes  of  this  state,  and  in  no  other  • 
and  no  surrogate  shall,  under  pretext  of  incidental  power  or  con- 
structive authority,  exercise  any  jurisdiction  whatever,  not  ex- 
pressly given  by  some  statute  of  this  state.  (2  R.  S.  221,  §  1.) 
It  was  quite  obvious  that  before  the  adoption  of  the  revised  statutes, 
find  afterwards,  until  the  repeal  of  the  above  restriction,  the  court 
could  only  be  treated  as  a  court  of  limited  statutory  jurisdiction. 
{Da-kin  v.  Hudson,  6  Cowen,  221.  The  People  v.  Barnes,  12 
Wend.  492.  Corwin  v.  Merritt,  3  Barb.  S.  C.  R.  341.  Wil- 
son v.  Baptist  Ed.  Society,  10  Barb.  308.%  Seaman  v.  Duryea, 
Id.  523 ;  S.  C.  on  appeal,  1  Kernan,  324.  Bloom  v.  Burdick, 
1  Hill,  134.  Sheldon  v.  Wright,  1  Seld.  511,  per  Foote,  J.) 
The  restrictive  clause,  above  mentioned,  created  much  embarrass- 
ment in  the  administration  of  justice  by  the  court.  Doubts  were 
entertained  whether  it  was  competent  for  the  surrogate  to  adjourn 
from  day  to  day,  or  to  administer  an  oath  to  a  witness,  in  any  matter 
depending  before  him;  or  to  issue  subpoenas  for  witnesses  out  of 
his  county.  These,  and  a  variety  of  other  doubts,  led  to  repeated 
applications  to  the  legislature  for  an  amendment  of  the  law.  The 
subject  was  referred  to  the  attorney  general,  and  by  him  a  report 
was  made  to  the  legislature,  accompanied  by  a  bill,  which  as 
amended,  was  adopted  in  1837.  {Laws  of  1837,  ch.  460,  p.  524, 
et  seq.)  This  law,  amongst  other  things,  repealed  the  restriction 
as  to  the  surrogate's  jurisdiction,  contained  in  the  revised  statutes, 
and  above  printed  in  italics,  and  introduced  various  other  changes 
in  relation  to  the  duties  of  the  office. 

The  surrogate  is  a  local  officer,  (1  R.  S.  101,  §  11,)  and  can  hold 


36  JURISDICTION. 

his  court  only  within  the  limits  of  his  county.  His  general  juris- 
diction, by  the  existing  statutes,  is : 

"  1st.  To  take  the  proof  of  wills  of  real  and  personal  estate,  in 
the  cases  prescribed  by  law ;  and  also  to  take  the  proof  of  any 
will  relating  to  real  estate  situated  within  the  county  of  such  sur- 
rogate, when  the  testator  in  such  will  shall  have  died  out  of  the 
state,  not  being  an  inhabitant  thereof,  and  not  having  any  assets 
therein ; 

"2d.  To  grant  letters  testamentary,  and  of  administration; 

"  3d.  To  direct  and  control  the  conduct,  and  settle  the  accounts 
of  executors  and  administrators  ; 

"4th.  To  enforce  the  payment  of  debts  and  legacies,  and  the 
distribution  of  the  estates  of  intestates  ; 

"  5th.  To  order  the  sale  and  disposition  of  real  estates  of  de- 
ceased persons ; 

"  Gth.  To  administer  justice  in  all  matters  relating  to  the  affairs 
of  deceased  persons,  according  to  the  provisions  of  the  statutes  of 
this  state ; 

"  7th,  To  appoint  guardians  for  minors,  to  remoye  them,  to  di- 
rect and  control  their  conduct,  and  to  settle  their  accounts,  as  pre- 
scribed by  law ; 

"  8th.  To  cause  the  admeasurement  of  dower  to  widows  ;  which 
powers  shall  be  exercised  in  the  cases,  and  in  the  manner  pre- 
scribed by  the  statutes  of  the  state."  (2  R.  S.  220,  as  amended 
by  the  list  section  of  the  act  of  1837,  p.  536.) 

The  foregoing  specification  of  powers  does  not  comprise  a  juris- 
diction over  express  trusts,  but  leaves  them  to  be  executed  as 
formerly,  by  a  court  having  jurisdiction  in  equity.  In  one  sense 
every  executor  is  a  trustee  for  the  legatees  and  next  of  kin.  Over 
the  ordinary  cases  of  such  trusts  jurisdiction  is  conferred  by  the 
foregoing  statute.  But  there  are  other  trusts  not  there  provided 
for.  The  revised  statutes  ousted  the  surrogate  of  jurisdiction  over 
the  accounts  of  executors  when  the  latter  were  liable  to  account  to 
a  court  of  equity,  by  reason  of  any  trust,  expressly  created  by  any 
last  will  and  testament.  (2  R.  8.  94,  §  QQ.)  The  act  of  April  10, 
1850,  provided  for  this  class  of  cases.  {Laics  of  1850,  p.  587.) 
It  allows  any  trustee  created  by  any  last  will  and  testament,  or 
appointed  by  any  competent  authority  to  execute  any  trust  created 


JUKISDICTION.  37 

by  any  last  will  and  testament,  or  any  executor  or  administrator 
■with  the  will  annexed,  authorized  to  execute  any  such  trust,  from 
time  to  time,  to  render  and  finally  settle  his  accounts  before  the 
surrogate  of  the  county  in  which  such  last  will  and  testament  was 
proved,  in  the  manner  provided  by  law  for  the  final  settlement  of 
the  accounts  of  executors  and  administrators,  and  for  that  purpose 
to  obtain  and  serve  in  the  same  manner,  the  necessary  citations 
requiring  all  persons  interested  to  attend  such  final  settlement, 
and  allows  the  decree  of  the  surrogate  on  such  final  settlement  to 
be  appealed  from  in  the  manner  provided  for  an  appeal  from  a  de- 
cree of  a  surrogate  on  the  final  settlement  of  the  accounts  of  an 
executor  or  administrator,  and  the  like  proceedings  to  be  had  on 
such  appeal.  It  declares  further,  that  the  final  decree  of  the  sur- 
rogate on  the  final  settlement  of  an  account  thus  provided  for,  or 
the  final  determination,  decree  or  judgment  of  the  appellate  tribu- 
nal, in  case  of  an  appeal,  shall  have  the  same  force  and  effect  as 
the  decree  or  judgment  of  any  other  court  of  competent  jurisdic- 
tion, on  the  final  settlement  of  such  accounts,  and  of  the  matters 
relating  to  such  trust,  which  shall  have  been  embraced  in  such 
accounts,  or  litigated  or  determined  on  such  settlement  thereof. 
This  is  an  important  enlargement  of  the  jurisdiction  of  the  surro- 
gate, but  it  does  not  supersede  the  cognizance  of  the  same  matter 
by  courts  having  jurisdiction  in  equity.  The  jurisdiction  of  the 
two  courts  is  in  this  respect  concurrent,  {Glover  v.  Holley, 
2  Brad.  Stir.  Rep.  291.) 

It  cannot  escape  observation  that  most  of  the  amendments  which 
have  been  made  to  the  law  in  relation  to  the  jurisdiction  of  surro- 
gates' courts  during  the  last  half  century  have  been  designed  to 
enlarge  and  confirm  that  jurisdiction.  Thus,  for  years  after  author- 
ity was  given  to  the  surrogate  to  make  order  for  the  sale  of  the 
real  estate  of  a  testator  or  intestate  for  the  payment  of  debts,  the 
courts  held  the  party  deriving  a  title  under  such  rule,  in  a  contro- 
versy with  the  heirs,  bound  to  show  the  regularity  of  the  proceed- 
ings. We  have  seen  that  the  legislature  at  some  times  was  ap- 
plied to  for  relief.  It  was  quite  reasonable  that  a  statute  authority 
by  which  one  may  be  deprived  of  his  estates,  should  be  strictly  pur- 
sued. {Bloom  v.  Burdick,  1  Hill,  181.  Corwin  v.  Merritt,  3  Barb. 
S.  C.  R.  341.)     But  the  reasons  on  which  the  earlier  cases  were 


gg  JURISDICTION". 

decided,  must  yield  to  the  enlarged  jurisdiction  of  the  court,  and  the 
greater  intelligence  by  which  its  business  is  conducted.  The  legis- 
lature has  felt  the  force  of  these  considerations,  and  has  by  the  law 
of  1850,  (L.  of  1850.  p.  117,)  given  to  the  sales  of  real  estate  made 
by  order  of  the  surrogate,  under  the  provisions  of  our  statutes,  the 
same  force  and  effect  as  if  made  by  order  of  a  court  having  original 
general  jurisdiction.  As  a  legitimate  deduction  from  this  principle, 
it  is  further  declared  that  the  title  of  any  purchaser  at  any  such 
sale  made  in  good  faith,  shall  not  be  impeached  or  invalidated, 
by  reason  of  any  omission,  error,  defect  or  irregularity  in  the 
proceedings  before  the  surrogate,  or  by  an  allegation  of  want  of 
jurisdiction  on  the  part  of  the  surrogate ;  except  in  the  manner 
and  for  the  causes  that  the  same  could  be  impeached  or  invalidated, 
in  case  such  sale  had  been  made  pursuant  to  the  order  of  a  court 
of  original  general  jurisdiction.  Sales  of  real  estate  made  by 
order  of  the  surrogate  stand  upon  the  same  footing  as  sales  made 
by  order  of  the  late  court  of  chancery,  or  the  present  supreme 
court.  They  are  void  in  all  cases  if  made  without  jurisdiction. 
But  the  jurisdiction  is  now  presumed  in  the  surrogate's  court  as  it 
is  in  the  supreme  court,  until  the  contrary  appears.  {See  Bloom 
v.  Burdick,  1  Hill,  139.) 

It  is  not  improbable  that  the  principles  of  pleading  adopted  by 
the  code  of  procedure  in  1848,  and  which  is  still  contained  in  that 
act,. {Code  o/1848,  §  138;  Code  o/1851,  §  161,)  would  have  ren- 
dered the  act  of  1850  in  a  great  measure  superfluous.  Although 
the  code  does  not  profess  to  regulate  the  practice  m  surrogates' 
courts,  yet  the  section  above  referred  to  provides,  that  in  pleading 
a  judgment  or  other  determination  of  a  court,  or  officer  of  special 
jurisdiction,  it  shall  not  be  necessary  to  state  the  facts  conferring 
jurisdiction ;  but  such  judgment  or  determination  may  be  stated 
to  have  been  duly  made.  If  such  allegation  be  controverted,  the 
party  pleading  is  required  to  establish  on  the  trial,  the  facts 
conferring  jurisdiction.  Whether  this  be  so  or  not,  the  act  of  1850 
was  framed  in  the  spirit  of  enlightened  justice,  and  was  a  proper 
supplement  to  the  principles  of  the  code. 

While  the  act  of  1850,  chapter  82,  above  referred  to,  was  not 
intended  to  authorize  the  surrogate,  or  officer  performing  the  duties 
of  that  office,  to  make  order  for  the  sale  of  real  property  of  a  de- 


JURISDICTION.  39 

ceased  person,  or  to  confirm  any  sucli  sale,  unless  upon  clue  exam- 
ination he  should  be  satisfied  that  the  provisions  of  law  had  been 
complied  with,  it  is  quite  clear  that  the  object  of  the  legislature 
was  to  prevent  sales,  made  in  good  faith,  from  being  defeated  in 
collateral  actions  by  technical  omissions  and  defects,  not  affecting 
the  merits  of  the  case.  The  omissions  and  defects  pointed  out  in 
the  statute  are  such  as  would  be  corrected  on  motion,  in  a  court 
of  general  jurisdiction,  or  would  be  overlooked  in  a  collateral 
action.  {Laws  of  1850,  p.  118,  §§  2,  3,  4.)  None  of  them  reach 
to  a  want  of  jurisdiction  of  the  person.  Such  objections  would  be 
fatal  in  any  court.  (Bloom  v.  Burdick,  1  Hill,  130-140.  Rea 
v.  McEachron,  13  Wend.  465.  Atkins  v.  Kinnan,  20  id.  241. 
Gilchrist  v.  Rea.  9  Paige,  6Q.) 

By  the  law  of  1813,  (page  451,  §  24,)  sales  of  real  estate  made 
by  order  of  the  court  of  probate  or  surrogate  were  required  to  be 
made  by  the  executors  or  administrators  applying  for  the  same, 
and  such  other  discreet  person  or  persons  as  the  judge  or  surro- 
gate should  think  proper  to  appoint,  and  the  conveyance  was  re- 
quired to  set  forth  such  order  at  large.  During  the  time  this  law 
was  in  force,  however,  it  had  been  in  numerous  instances  disre- 
garded, and  titles  acquired  in  good  faith,  proved  to  be  valueless. 
To  remedy  this,  the  legislature,  in  1819,  (L.  of  1819,  p.  214.)  after 
repealing  that  provision  for  future  cases,  authorized  the  purchaser, 
on  or  before  1st  January,  1824,  to  apply  to  the  chancellor  for  a 
confirmation  of  such  sale  ;  and  the  period  within  which  the  appli- 
cation could  be  made  was,  in  1825,  (L.  of  1825,  p.  445.)  extended 
indefinitely,  and  made  also  to  embrace  the  omission  of  the  setting 
out,  in  the  conveyance,  the  order  of  sale.  These  provisions  are 
now  a  part  of  the  revised  statutes.  (2  it.  S.  116,  §§  61  to  65.) 
They  were  followed  by  frequent  applications  to  the  court  for  the 
relief  contemplated  by^hem.  (Matter  of  Hemiup,  2  Paige,  31T. 
3  id.  305.  Rea  v.  McEachron,  13  Wend.  465.  Gilchrist  v.  Rea, 
9  Paige,  C6.  Bostwick  v.  Atkins,  3  Comst.  53.)  The  supreme 
court  now  has  the  same  jurisdiction  in  this  respect,  that  was  for- 
merly vested  in  the  court  of  chancery. 

Note.  The  comraissioncrs  of  pleading  and  practice,  in  their  report  to  the  legis- 
lature in  1 850,  classed  surrogates'  courts  under  head  of  courts  of  record.  (Report, 
p.  14.)    And  in  their  learned  note  at  pages  15  and  16,  they  show  that  on  sound 


40  JURISDICTION. 

principles  it  was  already  a  court  of  record.     This  report  was  not  adopted  by  tbo 
legislature,  and  the  law  as  to  surrogates  was  left  unaltered. 


Section  IV. 
Of  the  Officers  of  the  Court. 

It  has  already  been  stated  that  the  surrogate  is  a  local  officer, 
and  that  in  the  execution  of  the  duties  of  his  office,  he  is  confined 
to  the  county  for  which  he  was  elected.  (1  R.  8. 101,  §  11.)  By 
the  present  constitution  of  1846,  the  county  judge  is,  by  the  14th 
section  of  article  G,  required  to  do  the  duties  of  the  office  of  sur- 
rogate, in  all  the  counties  but  the  city  and  county  of  New  York. 
In  the  several  counties  besides  New  York,  having  a  population 
exceeding  forty  thousand,  the  legislature  is  authorized  to  provide 
for  the  election  of  a  separate  officer  to  perform  the  duties  of  the 
office  of  surrogate. 

The  city  and  county  of  New  York  stands  upon  an  independent 
footing.  The  constitution  provides  that  the  surrogate  of  that  city 
and  county  should  remain,  until  otherwise  directed  by  the  legis- 
lature, {Art.  14,  §  12.)  The  legislature,  in  1847,  made  provision 
for  the  election  of  surrogate  in  that  city  and  county,  and  fixed  the 
term  of  his  office  for  three  years.  By  a  subsequent  act,  the  sur- 
rogate is  empowered  to  appoint  so  many  assistants,  to  aid  him  in 
the  performance  of  the  duties  of  his  office,  as  he  should  deem  neces- 
sary for  that  purpose,  not  exceeding  the  number  which  he  shall, 
from  time  to  time,  be  authorized  to  appoint  by  the  board  of  super- 
visors of  the  said  city  and  county,  whose  duty  it  is,  from  time  to 
time,  to  prescribe  the  number  of  assistants  that  may  be  so  ap- 
pointed, which  number  may  at  any  time  be  increased  or  diminished, 
by  the  said  board.  The  board  also  fixes,  and  from  time  to  time 
changes,  the  salaries  of  such  assistants ;  but  no  such  salary  shall 
exceed  the  rate  of  twelve  hundred  dollars  a  year.  (L.  of  1847, 
p.  5G1,  §  7.)  These  assistants  have  power,  during  the  term  of  their 
appointment,  to  administer  and  certify  oaths  and  affirmations  in 
all  cases  in  which  said  surrogate  is  authorized  to  administer  the 
same.     (L.  of  1850,  p.  384.) 

In  case  a  vacancy  occurs  in  the  office  of  surrogate  of  the  city 
and  county  of  New  York,  the  board  of  supervisors  of  said  city  and 


JURISDICTION.  41 

county,  is  authorized  to  fill  up  the  same,  until  the  general  election 
next  ensuing  the  happening  of  such  vacancy,  when  an  election  is 
to  be  held  to  fill  the  unexpired  term.   (L.  of  1847,  p.  728,  §  3.) 

The  surrogate  of  the  county  of  Kings  is  authorized  and  required 
to  appoint  one  or  more  clerks,  to  assist  him  in  his  said  office.  A 
'  certificate  of  their  appointment  is  required  to  be  filed  in  the  office, 
as  evidence  of  their  appointment ;  and  the  clerks  so  appointed 
have  power  to  administer  oaths,  and  perform  such  other  duties  as 
are  properly  incident  to  the  business  of  the  office,  not  inconsistent 
with  the  constitution  and  laws  of  the  state.    (L.  of  1849,  p.  235.) 

In  the  other  counties  of  the  state  the  duties  of  the  office  are 
performed  by  the  county  judge,  by  a  separate  officer  elected  to 
perform  the  duties  of  the  office  of  surrogate,  denominated,  the 
surrogate,  (L.  of  1847,  p.  308,)  or  by  local  officers  elected  to  dis- 
charge the  duties  of  county  judge  and  surrogate.  All  laws  relating 
to  the  jurisdiction,  powers  and  duties  of  surrogates  and  surrogates' 
courts,  and  their  proceedings,  are  made  applicable  to  the  officer  act- 
ing as  surrogate,  under  the  provisions  of  law,  so  far  as  the  same 
can  be  applied,  and  are  consistent  with  the  constitution  and  the 
laws  of  the  state. 

There  is  no  direct  provision  in  any  of  our  statutes,  allowing  or 
permitting  parties  to  appear  in  surrogates'  courts  by  attorney  or 
counsel.  The  constitution  provides  that  any  male  citizen,  of  the 
age  of  twenty-one  years,  of  good  moral  character,  and  who  pos- 
sesses the  requisite  qualifications  of  learning  and  ability,  shall  be 
entitled  to  admission  to  practice  in  all  the  courts  of  this  state. 
{Const,  art.  6,  §8.)  In  carrying  out  this  provision  of  the  consti- 
tution, the  legislature,  in  1847,  enacted  that  every  solicitor  in  chan- 
cery, or  attorney  of  the  then  supreme  court,  on  the  first  Monday 
of  July,  1847,  should  be  entitled  to  practice  as  attorney,  solicitor 
and  counselor,  in  all  the  courts  of  this  state.  Attorneys  in  the 
former  court  of  common  pleas  were  entitled  to  practice  in  the 
county  court  of  the  same  county;  and  every  male  citizen  there- 
after admitted  to  the  supreme  court  should  be  entitled  to  practice 
as  an  attorney,  solicitor  and  counselor,  in  all  courts  in  this  state, 
until  he  should  be  suspended  from  such  practice,  by  the  supreme 
court.  (L.  of  1847,  p.  342,  §  75.)  It  is  doubted  by  a  learned 
6 


42  JURISDICTION". 

author,  [Day  torts  Surrogate,  p.  8,)  whether  these  statutes  make 
attorneys  officers  of  the  surrogates'  courts,  in  any  other  manner 
than  as  they  represent  their  clients  in  justices'  courts.  There  is 
no  direct  decision  on  the  point.  There  is,  however,  a  strong  impli- 
cation from  other  enactments,  that  parties  in  surrogates'  courts 
may  have  attorneys  and  counselors,  in  the  sense  in  which  those 
terms  are  understood,  with  reference  to  courts  of  record.  The 
language  of  the  constitution  and  the  judiciary  act  is  broad  enough 
to  embrace  them.  The  4th  section  of  the  act  of  1844,  (L.  of  1844, 
p.  448,)  forbids  the  son,  partner,  or  clerk  of  any  surrogate  from 
practicing  before  such  surrogate  as  attorney,  solicitor  or  counsel, 
for  any  party  to  any  proceeding  before  him.  This  provision  is  not 
repealed,  either  by  the  constitution  or  any  other  statute.  (See, 
also,  L.  of  1847,  p.  647,  §  51.) 

The  fact  that  in  the  early  legislation  on  the  subject  of  costs,  the 
statute  contained  no  fee  bill  applicable  to  the  services  of  attorneys 
in  surrogates'  courts,  would  give  rise  to  the  opinion  that  no  such 
officer  as  attorney  was  recognized  as  a  member  of  the  court. 
Though  costs  were  given  in  the  ecclesiastical  courts  in  England,  to 
the  proctor  and  advocate  in  those  courts,  yet  they  were  not  usually 
allowed,  if  at  all,  till  after  the  commencement  of  the  present  cen- 
tury. {Dean  v.  Russell,  3  Phill.  334.  1  Will.  Ex.  310.)  In 
Reid  v.  Yanderheyden,  (5  Cowen,  719,)  it  was  assumed  by  the 
members  of  the  court  of  errors  that  the  surrogate  had  no  authority 
to  award  costs  ;  and  the  chancellor,  in  Shultz  v.  Pulver,  (3  Paige, 
185,)  says,  that  on  examining  the  records  of  the  late  court  of 
probates,  he  finds  that  it  had  been  adjudged  by  that  court  that  it 
had  no  power  to  allow  costs.  The  revised  statutes,  however,  pro- 
vided for  the  allowance  of  costs  in  all  cases  of  contests  before  the 
surrogate,  to  be  paid  either  by  the  party  personally,  or  out  of  the 
estate  which  is  the  subject  of  the  controversy.  (2  R.  S.  223,  §  10.) 
As  no  special  tariff  of  fees  was  prescribed  in  such  cases,  it  was 
usual  to  follow  the  fee  bill  of  the  court  of  chancery,  as  far  as  it 
was  applicable.  (  Western  v.  Romaine,  1  Bradf.  Surr.  Rep.  37.) 
At  length,  in  1837,  it  was  enacted  that  in  all  cases  where  the  sur- 
rogate was  authorized  by  law  to  award  costs,  he  should  tax  them 
at  the  same  rate  allowed  for  similar  services  in  the  courts  of  com- 
mon pleas.     {Laics  of  1837,  p.  536,  §  70.)     This  section  is  still  in 


JURISDICTION.  43 

force,  and  it  was  held  by  the  surrogate  of  New  York,  in  Western 
v.  Romaine,  (supra,)  that  the  common  pleas  fee  bill,  in  force  at 
the  time  of  passing  the  law  of  1837,  is  still  operative,  so  far  as 
relates  to  the  costs  in  surrogates'  courts.  Since  the  revised 
statutes  and  especially  since  the  act  of  1837,  before  cited,  no 
argument  can  be  drawn  against  the  existence  of  attorneys  in  sur- 
rogates' courts,  from  the  want  of  a  fee  bill,  but  there  is  now  a 
strong  implication  in  their  favor,  arising  from  the  provisions  above 
mentioned.  The  subject  of  costs  in  surrogates'  courts,  belongs,  in 
its  other  aspects,  to  a  subsequent  part  of  this  treatise. 

The  statute  requiring  security  for  costs,  in  actions  brought  by 
non-residents,  and  subjecting  the  plaintiff's  attorney  to  such  costs 
to  the  extent  of  one  hundred  dollars,  in  case  he  brings  a  suit  for  a 
non-resident  without  having  given  the  security  required  by  law, 
has  been  held  not  to  be  applicable  to  surrogates'  courts.  (2  R.  S. 
620,  §  7.      Westervelt  v.  Gregg.  1  Barb.  Ch.  R.  467.) 

On  general  principles  there  is  a  propriety  of  recognizing  the 
existence  of  attorneys  and  counselors,  as  officers  of  the  court 
of  the  surrogate.  The  assistance  of  those  officers  in  conducting 
the  business  of  the  courts  and  especially  in  contested  matters,  is 
often  indispensable.  The  fact  that  they  are  so  employed,  when- 
ever the  occasion  requires  it,  is  undeniable.  The  tendency  of  the 
judicial  decisions  of  late  has  been  towards  the  recognition  of  such 
an  officer.  And  though  it  has  not  been  expressly  decided  that 
such  officers  are  members  of  the  court,  it  may  also  be  said,  that 
the  contrary  has  not  been  affirmed. 

With  respect  to  the  officers  of  the  court  by  whom  the  process 
of  surrogates'  courts  can  be  served,  it  is  expressly  enacted  that  every 
sheriff,  jailer,  coroner,  or  other  executive  officer,  to  whom  any  cita- 
tion, subpoena,  attachment  or  other  process  issued  by  a  surrogate's 
court,  may  be  directed  or  delivered  for  the  purpose  of  being  exe- 
cuted, shall  execute  the  same  in  the  same  manner  as  if  issued  by 
a  court  of  record,  (2  R.  S.  223,  §  9.)  Such  officer  is,  by  the  same 
act,  made  subject  to  the  same  penalties,  actions  and  proceedings, 
for  any  neglect  or  misfeasance  therein,  as  if  the  same  had  occurred 
in  relation  to  any  process  issued  by  courts  of  record.  By  the  act 
of  1837,  (p.  535,  §  6Q,)  process  of  attachment  or  other  compulsory 
process  authorized  by  law  to  enforce  the  orders,  process  or  decrees 


44  JURISDICTION". 

of  surrogates'  courts,  may  be  issued  by  the  surrogate  of  one  county 
to  the  officers  required  by  law  to  serve  the  same  in  any  other 
county  of  the  state  where  it  may  be  necessary  to  serve  the  same. 
The  officer  receiving  the  same  is  authorized  to  arrest  the  person 
against  whom  it  is  issued,  and  to  convey  him  to  the  county  and 
place  where  the  writ  is  returnable.  Attachments  and  other  com- 
pulsory process  issued  by  the  surrogate  are  required  to  be  made 
returnable  to  the  county  from  which  they  issue  ;  and  a  large  por- 
tion of  the  statute  relative  to  proceedings  upon  contempt  to  en- 
force civil  remedies  and  to  protect  the  rights  of  parties  in  civil  ac- 
tions, and  which  were  originally  framed  in  aid  of  the  jurisdiction 
of  courts  of  record,  are  made  applicable  to  the  attachments  issued 
by  surrogates.     (2  R.  S.  536,  §§  10,  12,  13,  1G  to  32.) 

The  indispensable  necessity  that  the  executive  officers  of  the 
county,  should  be  officers  of  surrogate's  courts,  or  at  least  be  bound 
to  execute  his  lawful  orders,  will  be  manifest  by  adverting  to  the 
power  conferred  on  the  surrogate,  in  the  administration  of  his  office. 
These  are,  by  the  act,  (2  R.  S.  221,  §  6,  as  amended  by  the  act 
of  1830,  p.  394,)  1.  To  issue  subpoenas,  under  his  seal  of  office, 
to  compel  the  attendance  of  any  witness  residing  or  being  in  any 
part  of  this  state,  or  the  production  of  any  paper,  material  to  any 
inquiry  pending  in  his  court,  the  form  of  which  shall  be  similar  to 
that  used  by  courts  of  record  in  the  like  cases.  2.  To  punish  dis- 
obedience to  any  such  subpoena,  and  to  punish  witnesses  for  re- 
fusing to  testify  after  appearing,  in  the  same  manner  and  to  the 
same  extent,  as  courts  of  record  in  similar  cases,  and  by  process 
similar  in  form  to  that  used  by  such  courts.  3.  To  issue  citations 
to  parties  in  all  matters  cognizable  in  his  court,  and  in  the  cases 
prescribed  by  law,  to  compel  the  appearance  of  such  parties. 
4.  To  enforce  all  lawful  orders,  process  and  decrees  of  his  court, 
by  attachment  against  the  persons  of  those  who  shall  neglect 
or  refuse  to  comply  with  such  orders  and  decrees,  or  to  exe- 
cute such  process  ;  which  attachments  shall  be  in  form  similar 
to  that  used  by  the  court  of  chancery  in  analogous  cases.  5.  To 
exemplify  under  his  seal  of  office,  all  transcripts  of  records,  papers 
or  proceedings  therein ;  which  shall  be  received  in  evidence  in  all 
courts,  with  the  like  effect  as  the  exemplifications  of  the  records, 
papers  "vnd  proceedings  of  courts  of  record.     6.  To  preserve  order 


JURISDICTION".  45 

in  his  court  during  any  judicial  proceeding,  by  punishing  con- 
tempts which  amount  to  an  actual  interruption  of  business,  or  to 
an  open  direct  contempt  of  his  authority  or  person,  in  the  same 
manner  and  to  the  same  extent,  as  courts  of  record." 

The  consideration  of  these  powers  falls  more  appropriately 
under  a  subsequent  part  of  this  treatise.  The  reference  to  them 
in  this  connection  is  to  show  the  propriety  of  considering  the  ex- 
ecutive officers  of  the  county  as  officers  of  this  court. 

.In  addition  to  the  foregoing  mode  of  obtaining  the  testimony  of 
witnesses,  it  is  obvious  that  the  jurisdiction  would  be  defective  and 
imperfect  if  the  testimony  of  an  absent  witness  could  not  be  ob- 
tained when  his  personal  attendance  cannot  be  procured.  The  act 
of  1837  has  provided  for  this  case.  By  the  77th  section  of  that 
act,  (L.  of  1837,  p.  537,)  the  surrogate  is  authorized  to  issue  a 
commission  to  take  such  testimony  in  the  same  manner  as  by  law 
the  same  may  be  done  in  any  court  of  record.  This  applies  to  any 
proceedings  or  matters  in  controversy  before  the  surrogate,  when 
the  testimony  of  a  witness  in  any  other  state  or  territory  of  the 
United  States,  or  any  foreign  place,  is  required  by  any  party  to 
such  proceedings  or  controversy.  The  practice  of  the  supreme 
court  in  analogous  cases  will  be  followed  in  taking  out  and  execut- 
ing such  commission.  It  is  regulated  by  statute.  (2  R.  S.  393, 
et  seq.) 

Section  V. 

Of  Pleadings  in  Surrogates''  Courts,  and  of  Process. 

There  is  no  statute  which  in  terms  requires  that  the  parties  to  a 
controversy,  in  a  surrogate's  court,  should  present  their  claim  or 
defense,  in  the  form  of  written  pleadings.  In  a  great  majority  of 
the  cases  which  in  the  country  are  submitted  to  the  jurisdiction  of 
this  court,  no  form  of  pleading  seems  to  be  contemplated  beyond 
the  petition  and  affidavit  verifying  the  death  of  the  testator  or  in- 
testate, together  with  such  description  of  his  kindred  as  may  be 
necessary  to  inform  the  court  as  to  the  parties  who  are  to  be  cited. 
In  this  class  of  cases,  when  there  is  no  controversy  anticipated, 
and  the  value  of  the  estate  to  be  administered  is  small,  it  is  seldom 
necessary  to  employ  counsel  in  the  first  instance.     The  surrogate, 


46  JURISDICTION. 

on  the  proper  application,  will  administer  the  proper  oath,  issue 
the  proper  process,  and  give  the  suitable  directions  for  their 
service. 

But  there  is  another  class  of  cases,  where  the  property  left  by 
the  deceased  is  large,  and  where  adverse  interests  are  represented, 
when  it  may  be  important  to  know  what  questions  are  to  be  liti- 
gated, and  wherein  the  parties  agree.  For  this  class  it  is  impor- 
tant to  know  whether,  by  the  practice  of  the  court,  any  and  what 
pleadings  are  admissible. 

After  the  abolition  of  the  court  of  probates,  appeals  from  surro- 
gate's courts  were  taken  to  the  court  of  chancery,  and  so  continued 
while  the  court  remained,  except  in  a  few  cases  where  it  was  taken 
to  the  supreme  court.  We  are  therefore  to  look  to  the  court  of 
chancery  for  the  rules  which  governed  the  practice  of  surrogates' 
courts.  In  an  early  case  before  Chancellor  Walworth,  {Foster  v. 
Wilber,  1  Paige,  540,)  which  came  before  him,  on  appeal  to  the 
surrogate  of  Columbia,  in  an  action  citing  executors  to  account,  he 
spoke  of  the  proceedings  as  loose  and  irregular,  because  the  pro- 
moters of  the  suit,  when  called  on  for  that  purpose,  failed  to  state 
the  grounds  of  their  claim  against  the  executors.  On  this  subject 
the  chancellor  observed  that  it  was  their  duty,  when  called  on  for 
that  purpose,  to  file  a  written  allegation  or  libel,  propounding  or 
stating  the  substance  of  their  claim  against  the  defendants  respect- 
ively, and  the  nature  and  grounds  thereof.  If  this  allegation  was 
insufficient,  and  showed  no  grounds  for  proceedings  against  the 
defendants,  the  court  might  be  called  upon  to  reject  it ;  or  they 
might  take  issue  on  the  facts  propounded  ;  or  put  in  a  counter 
allegation  in  the  nature  of  a  plea  in  bar.  Until  some  issue  was 
joined  in  the  cause,  neither  party  could  be  prepared  to  go  into  the 
examination  of  testimony.  (Approved  by  Parker,  J.,  Van  Vleek 
v.  Burroughs,  6  Barb.  344.) 

The  act  of  1778,  (1  Greenl  18,  §  3,)  vesting  in  the  court  of 
probate  the  powers,  authority  and  jurisdiction  in  testamentary 
matters  formerly  executed  by  the  prerogative  court  of  the  colony, 
is  silent  as  to  the  nature  of  the  pleadings  to  be  used  by  the  parties. 
The  chancellor,  in  Vanderheyden  v.  Reed,  {Hopkins,  408,)  while 
admitting  that  the  court  of  probates  and  prerogative  court  of  the 
colony  were  formed  upon  the  model  of  the  ecclesiastical  courts  of 


JUEISDICTION.  47 

England,  as  to  the  subject  of  their  jurisdiction,  held  that  they 
were  not  bound  to  follow  the  practice  of  those  courts.  He  thought 
the  court  having  the  like  jurisdiction,  might  exercise  it  by  such 
methods  of  proceeding  as  are  usual  and  not  forbidden  by  the  stat- 
utes and  laws.  Neither  the  constitution  of  1822,  or  the  present 
constitution,  prohibits  a  common  law  proceeding,  in  aid  of  those 
courts,  which  are  not  required  to  proceed  according  to  the  course 
of  the  common  law.  The  chancellor  thought,  in  that  case,  which 
was  an  appeal  from  the  deeree  of  a  surrogate  in  the  case  of  a  con- 
test as  to  the  testamentary  capacity  of  a  testator,  in  which  the 
court  of  chancery  occupied  the  place  of  the  former  court  of  pro- 
bates, that  his  jurisdiction  might  be  exercised  by  the  usual  course 
of  procedure  of  the  court  of  chancery,  and  he  accordingly  ordered 
a  feigned  issue  to  be  tried  by  a  jury.  Though  this  case  was 
reversed  by  the  court  of  errors,  it  was  upon  a  point  not  affecting 
its  authority  upon  the  above  question.  (5  Cowen,  719.)  It  is 
certainly  desirable  that  the  pleadings  in  all  courts  where  they  are 
admissible,  should  be  governed  by  the  same  rules,  and  follow,  as 
far  as  practicable,  the  same  forms.  This  is  according  to  the  spirit 
of  our  modern  legislation  and  the  decisions  of  the  courts. 

The  act  of  1847  in  relation  to  the  judiciary,  and  which  was  in- 
tended to  confer  jurisdiction  and  organization  upon  the  courts,  after 
the  adoption  of  the  constitution  of  1846,  contains  a  clear  implica- 
tion that  pleadings  may  be  adopted  in  surrogates'  courts.  (Laivs 
q/"1847,  p.  332,  §  45.)  It  provides  that  issues  of  facts  which  should 
be  joined  in  any  surrogate's  court  to  be  tried  by  a  jury,  should  be 
tried  in  the  county  court  of  the  county  in  which  the  surrogate's 
court  is  held. 

A  similar  provision  was  contained  in  the  revised  statutes.  In 
case  upon  the  hearing  of  an  application  for  the  sale  of  the  real 
estate  of  the  deceased,  any  question  of  fact  should  arise,  which  in 
the  opinion  of  the  surrogate  could  not  be  satisfactorily  determined 
without  a  trial  by  jury,  the  surrogate  was  authorized  to  award  a 
feigned  issue,  to  be  made  up  in  such  form  as  to  present  the  ques- 
tion in  dispute,  and  to  order  the  same  to  be  tried  at  the  next  circuit 
court  to  be  held  in  the  county.  New  trials  Avere  authorized  to  be 
granted  thereon  by  the  supreme  court,  and  the  final  determination 
of  the  issue  was  made  conclusive  as  to  the  facts  therein  controvert- 


48  JURISDICTION. 

ed,  in  the  proceedings  before  the  surrogate.  (2  R.  8.  102,  §  11.) 
Whether  the  mode  of  trial  by  feigned  issue  is  superseded  by  the 
provisions  of  the  act  of  1847,  §  45,  or  by  the  code  of  procedure, 
§  72,  it  is  not  important  in  this  connection  to  inquire.  (In  the 
matter  of  Wm.  Renwick,  2  Bradf.  Sur.  Rep.  80.) 

So  also  after  the  proof  before  the  surrogate  of  any  will  of  real  or 
personal  estate,  or  of  both,  an  appeal  may  be  taken  to  the  supreme 
court,  and  if  the  decision  of  the  surrogate  is  reversed  upon  a  ques- 
tion of  fact,  the  supreme  court  is  directed  to  award  a  feigned  issue 
to  try  the  questions  arising  upon  the  application,  and\lirect  the 
same  to  be  tried  at  the  next  circuit  court,  to  be  held  in  the  county 
where  the  surrogate's  decision  was  made.  Such  issue  was  required 
to  be  made  up  and  tried  in  the  same  manner  as  issues  awarded  in 
the  court  of  chancery.  But  the  supreme  court  is  authorized  to 
grant  a  new  trial  in  the  same  manner  as  if  the  suit  had  been 
originally  commenced  in  that  court.  (2  R.  S.  66,  67.  as  modified 
by°actofl8±1,ch.  280,  §17.) 

The  foregoing,  and  other  provisions  in  our  statutes,  contemplate 
that  issues  may  be  framed  in  surrogate's  court,  which  are  proper  to 
be  tried  by  a  jury.  Although  for  the  formation  of  an  issue  it  is 
not  indispensable  that  written  pleadings  should  be  employed,  yet 
it  is  desirable,  for  the  sake  of  certainty,  and  to  preserve  the  record 
of  the  questions  in  controversy,  that  they  should  be  in  writing, 
and  drawn  up  in  a  form  analogous  to  pleadings  in  other  courts. 

The  process  issued  by  the  court  are  citation,  subpoena  for  wit- 
nesses, attachment  to  enforce  obedience  to  its  orders,  and  injunc- 
tions in  certain  cases.  (Laws  of  1837,  p.  535.)  Their  nature 
and  the  circumstances  under  which  they  may  be  issued,  will  be 
more  appropriately  treated  in  a  subsequent  section. 

In  a  contest  as  to  the  validity  of  a  will  it  has  been  said  that  a 
person  claiming  as  next  of  kin  should,  in  his  allegation  of  interest, 
show  how  he  was  related  to  the  deceased.  (  The  Public  Admin- 
istrator of  New  York  v.  Watts,  1  Paige,  347.)  Such  party  is 
bound,  if  required  by  the  adverse  party,  to  propound  his  interest 
or  show  his  right  to  contest  the  will.  (Id.)  The  reversal  of  this 
case  by  the  court  of  errors,  was  upon  a  point  not  affecting  the 
above  principle.     (S.  C.  4  Wend.  168.) 


JURISDICTION.  49 

Section  VI. 

Of  the  poivcr  of  Surrogates'1  Courts  to  set  aside  proceedings  for 
irregularity,  and  to  grant  new  trials  on  the  merits. 

The  right  to  grant  a  new  trial  on  the  merits,  is  an  incident  of 
every  court  of  record  which  possesses  general  jurisdiction.  There 
is  a  strong  implication  against  this  power  in  surrogates'  courts, 
arising  from  the  legislative  provisions,  mentioned  in  the  preceding 
section,  authorizing  the  supreme  court  to  grant  a  new  trial  on 
issues  ordered  by  a  surrogate's  court,  to  be  tried  in  the  former  court. 
The  general  practice  when  not  otherwise  provided  for  by  the 
statute,  is  for  the  new  trial  to  be  applied  for  in  the  court  which 
ordered  the  issue.  {Doe  v.  Roe,  6  Cowen,  55.  Same  v.  Same, 
1  id.  216.)  The  fact  that  this  power  is  not  only  not  given  to  the 
surrogate's  court,  on  a  feigned  issue,  but  is  expressly  given  to 
another  tribunal,  is  a  strong  expression  of  the  legislature  adverse 
to  the  existence  of  the  power.  There  is  no  reported  case  which 
recognizes  the  jurisdiction  of  surrogates'  courts,  to  give  a  new  trial 
or  rehearing  on  the  merits,  and  there  is  no  statute  conferring  the 
authority. 

The  power  to  set  aside  proceedings  for  irregularity,  and  to  open 
defaults  depends  upon  different  principles.  The  practice  of  the 
surrogates'  courts  was  originally  derived  from  the  practice  of  the 
ecclesiastical  courts  of  England,  in  testamentary  matters ;  which 
courts  there  have  the  incidental  powers  of  a  court  of  chancery, 
and  of  the  courts  of  common  law,  in  regulating  the  proceedings 
before  them,  so  as  to  prevent  a  failure  of  justice  in  consequence  of 
mistakes  and  accidents  which  human  foresight  is  not  always  able 
to  guard  against.  (Pew  v.  Hastings,  1  Barb.  Ch.  R.  453,  per 
Walworth,  Ch.  citing  Shannery  v.  Allen,  1  Lee's  Eccl.  Rep.  9. 
Cargill  v.  Spence,  3  Hagg.  Eccl.  R.  146.)  Thus  the  chancel- 
lor, in  the  case  last  cited,  held  that  it  was  the  duty  of  the  surro- 
gate to  open  a  decree  for  an  accounting,  which  had  been  obtained 
by  default  under  circumstances  which  would  have  induced  the 
court  of  chancery  to  open  a  like  decree ;  and  the  decision  olf  the 
chancellor  was  affirmed  by  the  court  for  the  correction  of  errors, 
on  appeal.  (1  Barb.  Ch.  R.  455.)  In  another  case,  ( Vreedenbergh 
7 


50  JURISDICTION-. 

v.  Calf,  9  Paige,  128,)  the  chancellor  held  that  when  a  surrogate 
had  made  an  irregular  or  unauthorized  order,  he  had  the  power, 
on  a  proper  application,  to  set  it  aside,  and  that  it  was  his  duty  to 
do  so  where  such  order  was  made  ex  parte.  In  Skidmore  v. 
Davis,  (10  Paige,  316,)  the  same  chancellor  held  that  the  proper 
remedy  of  a  party  against  whom  an  order  was  granted  irregularly 
by  the  surrogate,  was  not  by  appeal  to  the  chancellor,  but  an  ap- 
plication to  the  surrogate  to  set  it  aside. 

The  repeal  in  1837,  {Laws,  p.  536,  §  71,)  of  the  restrictive 
clause  in  the  revised  statutes,  (2  R.  S.  221,  §  1,)  and  which  has 
been  before  adverted  to  in  these  pages,  has  been  supposed  to 
restore  to  the  court  certain  incidental  powers,  which  were  abso- 
lutely essential  to  the  administration  of  justice.  (Isham  v.  Gib- 
bon, 1  Bradf.  70,  78.)  In  a  still  later  case,  the  chancellor  held 
that  independently  of  the  statute  of  1837,  the  surrogate  was 
authorized  to  call  in  and  revoke  letters  of  administration  which 
had  been  irregularly  obtained  upon  a  false  suggestion  of  a  matter 
of  fact,  and  without  due  notice  to  the  party  rightfully  entitled  to 
administration.  Such  appears  to  have  been  the  undisputed  prac- 
tice of  the  English  ecclesiastical  courts  in  such  cases.  {Cornish 
v.  Cornish,  1  Lee's  Eccl.  Rep.  14.  Burgis  v.  Burgis,  Id.  121. 
Ogilvie  v.  Hamilton,  Id.  357.  Smith  v.  Gary,  Id.  418.)  The 
34th  section  of  the  act  of  1837,  page  530,  so  far  as  it  relates  to 
this  point,  was  merely  in  affirmance  of  the  common  law,  and  the 
principle  was  applied  to  other  cases  when  the  power  was  question- 
able, if  it  existed  at  all. 

Section  VII. 
Of  miscellaneous  matters  appertaining  to  the  office  of  Surrogate. 

It  is  proposed,  in  this  section,  to  advert  to  certain  matters  which 
could  not  be  conveniently  arranged  under  either  of  the  preceding 
heads. 

By  the  existing  law  the  surrogate  of  each  county  is  required 
to  provide  and  keep  the  following  books : 

1.  A  book  in  which  shall  be  fully  and  distinctly  recorded  all 
wills,  testaments  and  codicils  proved  before  him,  and  the  proof 
thereof;  and  in  which  he  may  also  record  any  will  relating  to  real 


JURISDICTION.  51 

estate  situated  within  his  county,  which  shall  have  been  duly 
proved  before  and  recorded  by  any  other  surrogate  ;  upon  the  pro- 
duction of  an  exemplified  copy  of  such  record. 

2.  A  book  in  which  shall  be  recorded  in  like  manner,  all  letters 
testamentary  and  of  general  and  special  administration. 

3.  A  book  in  which  shall  be  entered  all  minutes  of  other  pro- 
ceedings, by  or  before  him,  in  relation  to  the  estates  of  deceased 
persons,  with  all  orders  and  decrees  made  by  him,  and  minutes  of 
all  citations,  subpoenas,  attachments  and  other  process  issued  by 
him,  in  relation  to  such  estates ;  and  the  testimony  taken  by  him 
in  relation  to  the  granting  or  revocation  of  letters  testamentary, 
or  of  administration. 

4.  A  book  in  which  shall  be  recorded  the  appointment  of  guar- 
dians of  infants,  and  the  revocation  of  any  such  appointment. 

5.  A  book  in  which  shall  be  entered  all  proceedings  in  relation 
to  the  admeasurement  of  dower,  and  all  orders,  reports  and  de- 
crees thereupon. 

6.  A  book  in  which  shall  be  recorded  all  orders  and  decrees 
made  by  him,  upon  any  proceedings  in  relation  to  the  sale  of  the 
real  estate  of  deceased  persons. 

7.  A  book  in  which  shall  be  entered  at  length  and  by  items,  the 
fees  charged  and  received  by  him  on  all  proceedings  had  before 
him,  under  the  name  of  each  intestate  or  testator.  (2  R.  *S*.  222, 
as  modified  by  the  act  of  1837,  p.  524,  §§  2,  3.  2  R.  S.  110,  §  60.) 
To  each  of  the  said  books  there  should  be  an  index  of  the  subjects 
therein,  with  a  reference  to  the  pages  where  such  subjects  maybe 
found ;  which,  together  with  such  books,  are  required  to  be  at  all 
proper  times,  open  to  the  inspection  of  any  person  paying  the  fees 
allowed  by  law  for  such  examination. 

The  surrogate  was  required  by  the  revised  statutes,  (2  R.  S. 
222,  §  7,)  also  to  keep  a  book  in  which  should  be  entered  all  accounts 
of  executors  and  administrators,  settled  before  him,  and  also  the  ac- 
counts rendered  by  guardians,  at  full  length.  This  provision  was 
dispensed  with  by  the  act  of  1837,  p.  524,  §  2  ;  and  as  a  substitute 
he  is  now  required  to  file  said  accounts,  and  to  record  with  his  de- 
cree, a  summary  statement  of  the  same  as  they  shall  be  finally 
settled  and  allowed  by  him,  which,  are  to  be  referred  to  and  taken 
as  part  of  the  decree. 


52  JURISDICTION". 

Whenever  the  seal  of  office  of  the  surrogate  shall  be  lost  or  de- 
stroyed, or  shall  be  so  injured  that  it  cannot  conveniently  be  used, 
the  surrogate  is  required  to  procure  a  nevr  one  at  his  own  expense, 
similar  in  all  respects  to  the  former  seal,  and  to  give  notice  thereof 
to  the  secretary  of  state.  (2  R.  S.  221,  §  5.)  The  surrogate  ap- 
pointed for  a  new  county  hereafter  to  be  organized,  is,  in  like  man- 
ner required  to  procure  at  his  own  expense  a  seal  for  his  office. 
(Id.  §  4.) 

Formerly,  also,  the  several  books  in  which  were  recorded  all 
wills  proved  before  the  surrogate,  together  with  the  proof  thereof, 
and  all  letters  testamentary  and  of  administration  by  him  granted, 
were  required  to  be  furnished  at  the  expense  of  the  surrogate. 
(1  R.  L.  of  1813,  p.  446.)  But  in  the  revised  statutes  (2  R.  S. 
222,  §  7,)  the  latter  clause  was  omitted  in  the  section  which  directs 
the  surrogate  to  provide  suitable  books  for  recording  the  proceed- 
ings of  the  court ;  and  that  expense  has  since  been  held  by  the  su- 
preme court  to  constitute  a  proper  charge  against  the  county.  (MS.) 

Under  the  revised  statutes  it  had  become  the  practice  in  some 
counties  of  recording  wills  of  real  estate  proved  as  such,  in  a  differ- 
ent book  from  that  in  which  wills  admitted  to  probate  were  re- 
corded. Hence  the  same  will  might  be  recorded  twice  in  the  same 
office.  This  is  made  unnecessary  by  the  law  of  1837,  if  the  will 
is  recorded  as  a  will  of  real  estate,  before  it  is  admitted  to  pro- 
bate. (Laws  of  1837,  p.  528,  §  19.)  In  such  a  case  it  seems 
that  the  copy  of  the  record  already  entered,  is  issued  with  the  let- 
ters testamentary,  and  no  new  record  of  the  will  need  be  made. 

The  revised  statutes  require  every  surrogate  carefully  to  file 
and  preserve  all  affidavits,  petitions,  reports,  accounts  and  all  other 
papers  belonging  to  his  court ;  and  all  such  papers  and  the  books 
kept  by  him  are  declared  to  belong  and  appertain  to  his  office,  and 
to  be  delivered  to  his  successor.  (2  R.  JS.  223,  §  8.)  And  by  a 
subsequent  section  of  the  same  act  the  successor  in  office  is  author- 
ized to  complete  the  business  of  the  court,  unfinished  when  the 
vacancy  occurred. 

In  Williamson  v.  Williamson,  (6  Paige,  300,)  the  chancellor 
observed  that  it  was  the  duty  of  the  surrogate,  upon  the  taking  of  an 
account,  or  upon  any  other  proceeding  which  might  be  the  subject 
of  appeal,  to_reducc  to  writing  and  preserve  the  evidence  andadmis- 


JURISDICTION.  53 

sions  of  the  parties,  so  far  as  to  enable  him  or  his  successor  to  make 
a  correct  return  of  the  facts,  in  case  it  should  be  necessary  in  con- 
sequence of  an  appeal  to  a  higher  tribunal. 

The  legislature  of  this  state  has  always  exercised  a  becoming 
care,  and  manifested  a  deep  solicitude,  for  the  purity  of  the  admin- 
istration of  justice.  This  care  has  been  extended  to  all  holding 
judicial  stations.  The  design  seems  to  have  been  not  only  to  guard 
them  against  temptation,  but  also  to  remove  them  from  every  sus- 
picion of  partiality.  It  is  not  pertinent  to  our  subject  to  notice 
these  provisions  further  than  as  they  relate  to  surrogates.  This 
officer  is  forbidden  to  be  counsel,  solicitor  or  attorney  for  or  against 
any  executor,  administrator,  guardian  or  minor,  in  any  civil  action, 
over  whom  or  whose  accounts  he  could  have  any  jurisdiction  by 
law.  (2  R.  S.  223,  §  13.)  He  is  forbidden  also  to  practice  or  act 
as  attorney,  counsellor  or  solicitor  in  his  court,  or  in  any  cause 
originating  in  such  court.  This  prohibition  is  also  extended  to 
the  partner  in  business  of  the  surrogate,  who  is  also  forbidden  to 
practice  or  act  as  attorney,  solicitor  or  counsellor,  in  any  cause  or 
proceeding  before  such  surrogate,  or  originating  before  him.  (Laws 
o/1847,  p.  647,  §  51.)  And  this  prohibition  is  by  another  statute 
extended  to  the  son  and  clerk  as  well  as  the  partner  of  the  surro- 
gate.    (Laws  of  1844,  p.  448,  §  4.) 

All  judicial  officers,  and  therefore,  every  surrogate,  are  forbid- 
den to  demand  or  receive  any  fees  or  other  compensation,  for  giv- 
ing their  advice  in  any  matter  or  thing  pending  before  them,  or 
which  they  have  reason  to  believe  will  be  brought  before  them  for 
decision ;  or  for  drafting  or  preparing  any  papers  or  other  pro- 
ceedings, relating  to  any  such  matter  or  thing,  except  in  those 
cases  where  fees  are  expressly  given  by  law  to  such  officers,  for 
services  performed  by  them.  (2  R.  S.  275,  §  6,  as  amended  by 
the  law  of  1830,  p.  895.) 

In  the  foregoing  cases  the  disqualification  arises  from  some  act 
of  the  officer.  But  there  may  be  cases  in  which  the  surrogate  has 
been  passive  ;  and  still  he  may  be  an  improper  judge,  within  the 
principles  of  sound  morality.  Thus,  should  the  surrogate  be  in- 
terested as  next  of  kin  to  the  deceased,  or  should  he  be  a  legatee 
or  devisee  under  the  will ;  or  should  he  be  named  as  executor  or 
trustee  in  the  will  or  be  a  subscribing  witness  thereto,  it  is  fit  that 


54  JURISDICTION. 

ho  should  be  ousted  of  jurisdiction,  and  the  duties  of  the  office  be 
transferred  to  another  officer.  This  is  done  by  the  statute. 
(2  R.  &.  79,  §  48,  as  amended  in  1830,  p.  390.) 

The  person  who  is  required  to  act  in  the  foregoing  contingency 
is  the  county  judge,  formerly  the  first  judge  under  the  constitu- 
tion of  1822,  (2  R.  S.  79,  as  altered  by  the  act  of  1843,  ch. 
121,  §  1,)  or  the  local  officer  elected  to  perform  the  duties  of  the 
office  of  county  judge  and  surrogate,  or  in  case  of  their  disability  the 
district  attorney  of  the  county,  {Laws  of  1847,  p.  330,  §  37  ;  Id. 
643,  §  32,)  unless  he  labors  under  a  like  disability.  When  there 
is  no  person  capable  of  acting  under  the  provisions  of  the  law,  the 
supreme  court  is  authorized  to  issue  a  commission  to  some  suitable 
person,  empowering  him  to  act  as  surrogate  in  the  premises. 
(2  R.  S.  4th  ed.  266.) 

Under  the  revised  statutes  the  first  judge,  when  discharging  the 
duties  of  the  office  of  surrogate,  was  authorized  to  use  the  seal  of 
the  court  of  common  pleas  of  his  county  without  charge.  There 
was  a  propriety  in  this,  as  the  office  of  surrogate  was  not  vacant. 
Under  the  like  contingency  the  county  judge  must  use  the  seal  of 
the  county  court  of  his  county.  (2  R.  S.  79,  §  52,  making  the 
change  required  by  the  constitution.)  But  if  the  county  judge  is 
required  to  act  in  a  case  where  the  office  of  surrogate  is  vacant,  he 
must  use  the  seal  of  the  surrogate  of  the  county.  {Laws  of  1837, 
p.  543.)  In  the  former  case  all  papers,  vouchers  and  documents 
were  required  to  be  deposited  by  the  judge  in  the  office  of  the 
county  clerk  of  the  county,  and  in  the  latter  to  be  filed  in  the  sur- 
rogate's office.     {Id.) 

Inasmuch  as  the  fact  of  the  surrogate's  being  a  subscribing  wit- 
ness to  the  will  was  not  originally  made  a  ground  of  disability  in 
the  surrogate  by  the  revised  statutes,  it  was  doubted,  at  one  time, 
whether  the  first  judge  possessed  the  same  powers  as  when  the 
disability  of  the  surrogate  arose  from  the  causes  mentioned  in  the 
act.  The  act  of  1834,  page  574,  removed  this  doubt,  and  gave  to 
the  first  judge  the  same  jurisdiction  in  both  cases. 

The  surrogate  is  required,  within  twenty  days  after  receiving 
notice  of  his  election,  to  execute  to  the  people  of  this  state,  with 
two  or  more  surieies,  being  freeholders,  a  joint  and  several  bond, 
conditioned  fur  the  faithful  performance  of  his  duty  and  for  the  ap- 


JURISDICTION.  55 

plication  and  payment  of  all  moneys  and  effects  that  may  come 
into  bis  hands  in  the  execution  of  his  office.  The  bond  of  the  sur- 
rogate of  the  city  and  county  of  New  York  is  to  be  in  the  penal 
sum  of  ten  thousand  dollars,  and  that  of  every  other  surrogate  in 
the  sum  of  five  thousand  dollars.  (1  R.  S.  382,  §  87.)  The  clerk  of 
the  county  is  the  judge  of  the  sufficiency  of  the  sureties.  He  is 
to  take  the  constitutional  oath  of  office  within  fifteen  days  after 
being  notified  of  his  election,  which  oath  may  be  taken  before  the 
clerk  of  the  county,  and  must  be  filed  in  the  office  of  such  clerk. 
It  may  also  be  taken  before  the  county  judge  or  a  judge  of  the 
supreme  court.     (1  R.  S.  119,  §  20  to  22.) 


PART  II. 


OF  THE  ORIGINAL  AND  EXCLUSIVE  JURISDICTION  OF  SURROGATES* 
COURTS  ;  AND  HEREIN  OF  THE  APPOINTMENT  OF  EXECUTORS  AND 
ADMINISTRATORS. 


CHAPTER  I. 

OP    WILLS,    THEIR    ORIGIN,    NATURE    AND    INCIDENTS. 

IT  is  impossible  to  have  a  correct  understanding  of  the  duties  of 
executors  and  administrators,  without  some  previous  acquaint- 
ance with  the  law  concerning  wills  and  testaments.  The  unlimited 
power  of  testamentary  alienation,  which  every  person  not  laboring 
under  some  disability,  possesses  in  this  country,  over  his  property, 
makes  it  incumbent  on  those  who  are  entrusted  with  the  manage- 
ment of  the  estates  of  deceased  persons,  to  acquire  accurate  notions 
of  that  instrument  especially  by  which  their  authority  is  conferred, 
regulated  or  restrained.  This  instrument,  when  it  relates  solely 
to  personal  property,  is  usually  denominated  a  will  or  testament ; 
when  it  relates  to  real  property  it  is  called  a  devise  ;  and,  in  both 
cases,  it  may  be  defined  to  be  the  legal  declaration  of  a  party's  in- 
tention which  he  directs  to  be  performed  after  his  death.  (2  Bl. 
Com.  499,  500.)  In  popular  language  a  testamentary  disposition 
of  either  real  or  personal  property,  or  of  both  together,  is  denomi- 
nated a  last  will  and  testament.  It  is  proposed  to  treat  briefly  in 
this  chapter,  of  the  origin  and  incidents  of  wills,  both  of  personal 
property  and  of  devises  of  real  property. 


ORIGIN  AND  NATURE  OF  WILLS.  57 

The  power  of  making  a  will  of  personal  property  is  said,  by  the 
elementary  writers  on  this  subject,  to  have  existed  and  continued 
from  the  earliest  records  of  English  law.  We  have  no  traces  or 
memorials  of  any  time  when  it  did  not  exist.  But  this  power,  it 
seems,  did  not  originally  extend  to  all  a  man's  personal  estate,  un- 
less he  died  without  wife  or  issue.  On  the  contrary,  Glanville  in- 
forms us  that  by  the  common  law,  as  it  stood  in  the  reign  of 
Henry  2,  a  man's  goods  were  to  be  divided  into  three  parts  ;  of 
which  one  went  to  his  heirs,  or  lineal  descendants  ;  another  to  his 
wife,  and  the  third  was  at  his  own  disposal ;  or  if  he  died  without 
a  wife,  he  might  then  dispose  of  one  moiety  and  the  other  went  to 
his  children  ;  and  so,  e  converso,  if  he  had  no  children,  the  wife 
was  entitled  to  one  moiety,  and  he  might  bequeath  the  other.  But 
if  he  died  without  either  wife  or  children  the  whole  was  at  his 
own  disposal.  The  shares  of  the  wife  and  children  were  called 
their  reasonable  parts  ;  and  the  writ  de  raiionabili  parte  bono- 
rum  was  given  to  recover  them.  Whether  this  was  the  general 
law  of  the  land  or  prevailed  in  certain  districts  only  by  custom,  it  is 
unnecessary  to  inquire.  The  law  itself  became  altered  by  impercept- 
ible degrees,  and  the  deceased  might,  in  England,  before  the  Ameri- 
can revolution,  bequeath  by  will  the  whole  of  his  goods  and  chattels  ; 
though,  perhaps,  it  is  impossible  to  trace  out  when  the  first  alter- 
ation began.  (2  Bl.  Coin.  491,  492.)  By  virtue  of  several  stat- 
utes, enacted  at  different  periods,  the  residue  of  the  whole  kingdom 
has  been  brought  to  the  same  standard,  thereby  barring  the 
claims  of  the  widow,  children  and  other  relations.  And  thus  the 
old  common  law,  throughout  the  whole  kingdom,  was  utterly  abol- 
ished, and  the  owner  was  allowed  to  bequeath  the  whole  of  his 
chattels  as  freely  as  he  formerly  could  his  third  part  or  moiety. 
Our  ancestors  brought  to  this  country  so  much  of  the  common  law 
in  this  respect  as  was  suited  to  their  circumstances  and  condition. 
In  general  it  may  be  observed  that  the  right  of  bequeathing  per- 
sonal property  is  with  us  as  extensive  as  the  testators'  dominion 
over  it. 

In  England  too,  by  statute,  1  Vict.  26,  entitled  an  act  for  the 

amendment  of  the  law  with  respect  to  wills,  passed  3d  July,  1837, 

it  is  made  lawful  for  every  person  to  devise,  bequeath  and  dispose 

of,  by  his  will  executed  as  required  by  that  act,  all  real  estate  and 

8 


58  NATURE  OF  WILLS— CODICIL. 

all  personal  estate  which  he  shall  be  entitled  to,  either  in  law  or 
equity,  at  the  time  of  his  death.  (See  this  act  in  Preface  to 
1  Wms.  Executors,  4th  Am.  eel.  from  the  last  London  ed.  and 
in  the  Appendix  to  Jar  man  on  Wills,  3d  Am.  ed.) 

It  was,  at  common  law,  one  of  the  incidents  of  a  last  will  and 
testament,  in  respect  to  the  personalty,  that  it  was  a  disposition 
of  a  man's  personal  estate  to  take  effect  after  the  death  of  the  tes- 
tator. It  operates  on  whatever  personal  estate  a  man  dies  pos- 
sessed of,  whether  acquired  before  or  after  the  execution  of  the  in- 
strument. A  will  of  personal  property  speaks  from  the  death  of 
the  testator ;  a  devise  of  real  estate,  formerly  spoke  from  the  date 
of  the  devise.  But  now,  by  statute,  both  speak  from  the  same 
point  of  time,  the  death  of  the  testator.  (2  R.  S.  57,  §  5.)  In 
this  respect,  the  English  law  and  our  own  are  substantially  alike. 

According  to  the  old  authorities  of  the  ecclesiastical  law,  the 
appointment  of  an  executor  was  essential  to  a  testament.  (Swinb. 
part  1,  §  19.  Oodol.  part  1,  ch.  1.  §  2.)  But  this  strictness  has 
long  ceased  to  exist,  and  probably  never  existed  at  all  in  this 
country. 

A  codicil,  in  the  usual  acceptation  of  the  term,  is  an  addition 
made  by  the  testator,  and  annexed  to,  and  to  be  taken  as  a  part 
of  a  testament,  being  for  its  explanation,  or  alteration,  or  to  make 
some  additions  to,  or  some  subtraction  from,  the  former  disposition 
of  the  testator.  In  this  sense  it  is  part  of  the  will,  all  making 
but  one  testament.  It  requires  the  same  formalities  to  render  it 
valid,  and  is  thus  placed  in  every  respect  on  the  same  footing  as 
the  will.     (2  R.  8.  68,  §  71.) 

A  will  is,  in  its  nature,  a  different  thing  from  a  deed,  and  al- 
though the  testator  happens  to  execute  it  with  the  formalities  of  a 
deed ;  for  example,  though  he  should  seal  it,  which  is  no  part  of 
the  ingredient  of  a  will ;  yet  it  cannot  in  such  case  be  considered 
as  a  deed.     {Earl  of  Darlington  v.  Pultney,  1  Cowper,  261.) 

It  is  also  a  peculiar  property  in  a  will,  as  it  will  hereafter  more 
fully  appear,  that  by  its  nature,  it  is  in  all  cases  a  revocable  in- 
strument, even  should  it  in  terms  be  made  irrevocable ;  for  it  is 
truly  said  that  the  first  grant  and  the  last  will  is  of  the  greatest 
force. 


NATURE  OF  WILLS— DOMICIL.  59 

The  law  of  donaicil  is  important  to  be  considered  with  reference 
both  to  wills  and  the  succession  to  the  estates  of  intestates. 

There  has  been,  it  is  said,  a  difference  of  opinion  among  foreign 
jurists,  whether  a  will  of  personal  estate,  in  which  the  testator  has 
complied  with  the  forms  and  solemnities  required  by  the  lex  loci 
actus,  is  a  valid  testamentary  disposition  of  such  property ; 
although  in  the  form  of  its  execution,  such  will  does  not  conform 
to  the  requirements  of  the  law  of  the  testator's  domicil.  Accord- 
ing to  Chancellor  Walworth,  (in  the  matter  of  Catharine  Roberts' 
will,  8  Paige,  525,)  the  better  opinion  is,  that  so  far  as  regards 
the  mere  formal  execution  of  the  testament,  it  is  sufficient  if  it  con- 
forms to  the  law  of  the  country  where  the  will  is  made  ;  in  accord- 
ance with  the  maxim,  locus  regit  actum.  (See  17  Guyotfs  Re]), 
de  juris,  art.  Testament,  186.  4  Burge,  Col.  and  Foreign, 
Law,  583.)  Probably,  says  the  chancellor  in  the  same  case,  the 
testament  may  also  be  valid  if  made  and  executed  in  conformity 
to  the  law  of  the  testator's  domicil,  although  it  does  not  con- 
form in  all  respects  to  the  lex  loci  actus.  (Story's  Confl.  391.) 
It  appears  to  be  the  generally  received  doctrine,  at  the  present 
day,  that  the  status  or  capacity  of  the  testator  to  dispose  of  hi8 
personal  estate  by  will,  depends  upon  the  law  of  his  domicil. 

The  revised  statutes  of  New  York  seem  to  contemplate  that  a 
will  of  personal  property,  by  a  citizen  of  this  state,  is  valid,  if 
made  in  conformity  to  the  requirements  of  our  law  ;  although  exe- 
cuted out  of  this  state,  and  in  a  place  where  the  local  laws  require 
the  adoption  of  a  different  form.  This  is  a  distinct  recognition  of 
the  principle  that  the  will  may  be  valid,  if  made  and  executed  in 
conformity  with  the  law  of  the  testator's  domicil.  (2  R.  S.  67,  as 
amended  by  the  act  of  1830,  p.  389.  3  R.  S.  152,  5th  ed.  §  85.) 
This  doctrine  has  been  acted  upon  by  the  surrogate  of  New  York, 
and  a  mutual  or  conjoint  will  executed  according  to  the  Danish, 
law  by  husband  and  wife,  then  resident  in  a  Danish  colony,  has 
been  declared  to  be  valid,  though  not  attested  according  to  the 
laws  of  New  York.     (Ex  parte  McCormick,  2  Bradf.  169.) 

The  law  of  the  testator's  domicil  at  the  time  of  his  decease, 
governs  as  respects  his  testamentary  capacity.  (Id.  Story's  Confl. 
Laws,  §  473.)  It  governs  also  the  rule  of  succession  to  his  per- 
sonal estate  in  case  he  dies  intestate.     If,  therefore,  a  foreigner 


60  NATURE  OF  WILLS-DOMICIL— MUTUAL  WILLS. 

dies  domiciled  in  England,  his  personal  property  in  England,  in 
case  lie  were  intestate,  will  be  distributed  according  to  the  Eng- 
lish law  of  succession ;  and  any  will  he  may  have  left,  whether 
made  in  his  native  or  in  his  adopted  country  or  elsewhere,  must  be 
construed  according  to  the  law  of  England.  (1  Jarman  on 
Wills,  2.  Anstruther  v.  Chalmer,  2  Sim.  1.  Price  v.  Dewhurst, 
4  Mylne  $*  Cr.  75.)  A  will  of  personalty  speaks  according  to 
the  testator's  domicil,  when  there  are  no  other  circumstances  to 
contract  the  application.  To  raise  the  question  what  the  testator 
meant,  it  must  first  be  ascertained,  where  was  his  domicil,  and 
whether  he  had  reference  to  the  laws  of  that  place,  or  to  the  laws 
of  a  foreign  country.     {Harrison  v.  Nixon,  9  Peters,  483.) 

An  essential  difference  between  a  will  and  a  deed  is  pointed  out 
in  the  English  books,  (1  Wms.  Executors,  10,)  viz  :  that  there 
cannot  be  a.  joint  or  a  mutual  will.  Such  an  instrument,  it  was 
remarked  by  Sir  John  Nichols,  in  Hobson  v.  Blackburn,  (1  Add. 
274.)  is  unknown  to  the  testamentary  law  of  England.  Lord 
Mansfield  seems  to  have  been  of  the  same  opinion  in  delivering  his 
judgment  in  Earl  of  Darlington  v.  Pidtney,  (1  Cowp.  261.)  A 
different  view  of  the  question  was  taken  by  the  surrogate  of  New 
York,  in  Day  Ex  parte,  (1  Bradf.  Sur.  476.)  The  learned  sur- 
rogate held  that  a  mutual  will  might  be  admitted  to  probate  on 
the  decease  of  either  of  the  parties,  as  his  will.  But  while  this 
was  so,  the  instrument,  though  irrevocable  as  a  compact,  was  revo- 
cable as  a  will  by  any  subsequent  valid  testamentary  paper.  But 
if  unrevoked,  the  surrogate  thought  it  might  be  proved,  provided  it 
had  been  executed  with  the  formalities  and  ceremonies  essential 
to  the  due  execution  of  a  will. 

Cases  of  mutual  wills,  though  not  unfrequent  in  countries  where 
the  civil  law  prevails,  are  unusual  in  this  country ;  and  whether 
valid  or  not,  are  not  the  most  advisable  form  of  contract. 

It  has  long  been  a  principle  in  the  ecclesiastical  law,  that  the 
granting  of  probate  is  conclusive  as  to  the  testamentary  character 
of  the  instrument  in  reference  to  the  personalty.  This  doctrine 
has  been  fully  applied  in  a  variety  of  cases  to  the  surrogates'  courts 
of  this  state.  It  was  expressly  recognized  by  the  chancellor  in 
Colton  v.  Ross,  (2  Paige,  398,)  adopting  the  rule  as  expounded 


EFFECT  OF  PROBATE  OF  WILLS.  61 

by  Lord  Eldon,  in  Lynn  v.  Beaver,  ( T.  fy  R.  67.)  The  provision 
of  the  revised  statutes  on  this  subject  is  not  introductory  of  any 
new  rule,  but  in  affirmance  of  the  common  law.  It  merely  makes 
the  probate  of  any  will  of  personal  property,  taken  by  a  surrogate 
having  jurisdiction,  conclusive  evidence  of  the  validity  of  such  will, 
until  such  probate  be  reversed  on  appeal,  or  revoked  by  the  surro- 
gate, as  afterwards  directed,  and  as  will  be  noticed  in  its  proper 
place ;  or  the  will  be  declared  void  by  a  competent  tribunal. 
(2  R.  S.  61,  §  29.  Vanderpoel  v.  Van  Valkenburgh,  2  Seld.  190. 
Stephens  v.  Mead,  18  Barb.  8.  C.  Rep.  578.) 

But  this  principle  is  not  applicable,  to  the  same  extent,  to  the 
decision  of  the  surrogate  as  to  the  validity  of  a  devise  of  real 
estate  contained  in  the  same  will.  (Bogardus  v.  Clark,  4  Paige, 
623.  Vanderpoel  v.  Van  Valkenburglt,  supra.)  Jurisdiction 
is  conferred  by  statute  on  the  surrogate's  court  to  take  the  proofs 
of  the  due  execution  of  wills  of  real  estate,  and  to  record  the  same 
together  with  such  proofs.  The  statute  declares  that  the  record  of 
such  will,  and  the  exemplification  of  such  record,  by  the  surrogate 
in  whose  custody  it  is,  shall  be  received  in  evidence,  and  be  as 
effectual  in  all  cases  as  the  original  would  be  if  produced  and 
proved,  and  may  in  like  manner  be  repelled  by  contrary  proof. 
(2  R.  S.  58,  as  amended  by  the  act  of  1837,  p.  524  to  528.  3  R.  S. 
140,  5th  ed.)  The  object  of  the  law  was  to  make  the  certificate 
of  the  surrogate  and  the  record  of  the  will,  or  an  exemplification, 
prima  facie  evidence.  In  this  respect  they  are  placed  on  the 
same  footing  as  the  record  and  exemplifications  of  deeds.  ( Vander- 
jwel  v.  Van  Valkenburgh,  supra.  Bogardus  v.  Clark,  4  Paige, 
623.)  And  hence,  while  the  probate  of  a  will  is  conclusive  as  to 
the  personalty  in  all  collateral  actions,  the  proof  of  a  will  of  real 
estate,  and  the  record  thereof  taken  in  conformity  to  the  statute,  is 
merely  prima  facie.  The  proceeding  to  obtain  probate  of  a  will  is 
said  to  be  in  the  nature  of  a  proceeding  in  rem,  to  which  all  per- 
sons having  an  interest  in  the  subject  of  litigation  may  ina*ke  them- 
selves parties,  and  are  consequently  bound  by  the  decree.    (Id.) 

The  surrogate's  court  having  thus  to  a  certain  extent  a  jurisdic- 
tion over  wills  of  real  estate,  it  is  appropriate  to  our  subject  to  no- 
tice, briefly,  the  origin,  progress  and  incidents  of  devises. 


62  ORIGIN  AND  NATURE  OF  DEVISES. 

A  devise  is  a  last  will  and  testament,  by  which  real  estate  is  dis- 
posed of,  to  take  effect  at  the  death  of  the  devisor.  The  word  de- 
vise appears  to  be  derived  from  divide,  and  originally  meant  any 
kind  of  division  or  distribution  of  property.  (Cruise's  Dig.  tit. 
Devise,  ch.  1,  §  1.) 

It  is  generally  agreed,  says  the  same  author,  that  the  power  of 
devising  lands  existed  in  the  time  of  the  Saxons  ;  but  upon  the 
establishment  of  the  Normans,  it  was  taken  away  as  inconsistent 
with  the  principles  of  the  feudal  law ;  and  although  many  of  the 
restraints  on  alienation  by  deed  were  removed  before  Glanville 
wrote,  yet  the  power  of  devising  lands  was  not  allowed  for  a  long 
time  after  ;  partly  from  an  apprehension  of  imposition  on  persons 
in  their  last  moments  ;  and  partly  on  account  of  the  want  of  that 
public  notoriety  which  the  common  law  requires  in  every  transfer 
of  property. 

The  power  of  devising  continued  as  to  socage  lands,  situated  in 
cities  and  boroughs,  and  also  as  to  all  lands  in  Kent,  held  by  the 
custom  of  gavelkind.  The  restraint  upon  the  power  of  devising 
did  not  give  way  to  the  demand  of  family,  and  public  convenience^ 
so  early  as  the  restraint  upon  the  alienation  in  the  lifetime  of  the 
owner.  The  power  was  indirectly  acquired  by  means  of  the  inven- 
tion of  uses,  for  a  devise  of  the  use  was  not  considered  a  devise  of 
the  land.  The  devise  of  the  use  was  supported  by  the  courts  of 
equity  as  a  disposition  binding  in  conscience,  and  that  equitable 
jurisdiction  continued  until  the  use  became,  by  statute,  the  legal 
estate.  The  statute  of  uses,  like  the  introduction  of  feuds,  again 
destroyed  the  privilege  of  devising,  but  the  disability  was  removed 
within  five  years  thereafter,  by  the  statute  of  wills,  32  Henry  8. 
That  statute  applied  the  power  of  devising  to  socage  estates,  and 
to  two-thirds  of  the  land  held  by  knight  service ;  and  this  check 
was  removed  with  the  abolition  of  the  military  tenures  in  the  be- 
ginning of  the  reign  of  Charles  2,  so  as  to  render  the  disposition 
of  real  property  by  will  absolute.  (Cruise's  Dig.  tit.  Devise, 
ch.  1.     4  Kent's  Com.  504.) 

The  English  law  of  devise  was  imported  into  this  country  by  our 
ancestors,  and  incorporated  into  our  colonial  jurisprudence,  under 
such  modifications  in  some  instances,  as  were  deemed  expedient. 
The  recognition  of  this  general  fact,  was  in  this  state  emphatically 


ORIGIN  AND  NATURE  OF  DEVISES.  63 

made  by  the  first  constitution,  adopted  in  1777,  and  has  been  sub- 
stantially repeated  in  each  subsequent  revision  of  the  organic  law. 
Our  ancestors  claimed  the  common  law  as  their  birthright.  Lands 
may  be  devised  by  will,  in  all  the  United  States ;  and  the  statute 
regulations  on  this  subject  are  substantially  the  same,  as  they  have 
been  taken  from  the  English  statutes  of  Henry  8,  and  29  Charles 
2.     (See  1  Greenl.  386  et  seq.) 

In  this  state,  by  the  existing  law,  a  man  may  devise  whatever 
would,  without  a  devise,  descend  to  his  heirs.  (2  R.  S.  57,  §  2.) 
And  if  it  is  so  expressed,  a  devise  may  operate  upon  after-acquired 
lands,  as  well  as  upon  that  which  the  devisor  owned  at  the  time  of 
executing  the  will.  (Id.  §  5.)  It  was  otherwise,  at  common  law  ; 
a  devise  being  considered  merely  as  a  conveyance,  and  operating 
only  upon  the  interest  of  which  the  testator  was  seized  at  the  time 
of  making  the  devise,  and  of  which  he  continued  so  seized  till  his 
death.  (Cruise's  Dig.  title  Devise,  ch.  3,  §  37.)  So  that  if  a 
person  devised  his  lands,  and  was  afterwards  disseized,  and  died 
before  entry,  the  devise  was  void ;  but  if  the  devisor  re-entered, 
the  devise  became  again  valid,  the  disseizin  being  thus  purged, 
and  the  disseizee  being  considered  as  never  having  been  out  of 
possession.  But  this  feature  of  the  common  law  has,  as  we  have 
seen,  been  changed  in  England  by  the  statute  (1  Vict.  ch.  26,) 
already  referred  to,  by  force  of  which  every  person  may  devise,  be- 
queath or  dispose  of,  by  his  will,  all  real  estate  and  all  personal  estate, 
which  he  shall  be  entitled  to  either  at  law  or  in  equity  at  the  time 
of  his  death  ;  and  which,  if  not  so  devised,  bequeathed  or  disposed 
of,  would  devolve  upon  the  heir  at  law.  (See  the  act  in  Preface 
to  1  Wms.  Ex'rs,  4:th  Am.  from  the  last  London  ed.,  and  in 
Appendix  to  2  Jar  man  on  Wills,  §  3.) 

Wills  which  convey  both  real  and  personal  property  are  of 
a  mixed  character.  They  may  be  both  admitted  to  probate  and 
proved  as  wills  of  real  estate.  The  probate  will  be  conclusive,  so 
far  as  it  relates  to  the  personalty,  and  the  record  properly  attested 
or  exemplified  as  a  will  of  real  estate,  will  be  prima  facie  evidence, 
in  a  controversy  as  to  the  realty,  subject,  however,  to  be  repelled 
by  other  proof. 

In  this  state,  it  will  be  seen  hereafter  that  the  requisites  to  a 
valid  execution  of  a  will  are  the  same,  both  in  a  will  of  real  and 


64  NUNCUPATIVE  WILLS. 

personal  property  ;  except  that  in  the  latter,  a  male  of  the  age  of 
eighteen  and  an  unmarried  female  of  the  age  of  sixteen,  being  in 
other  respects  competent,  may  bequeath  his  or  her  personal  prop- 
erty by  will  in  writing.     (2  R.  S.  60,  §  21.) 

A  few  observations  on  the  subject  of  nuncupative  wills,  will  close 
this  branch  of  our  subject. 

At  common  law,  a  will  of  chattels  was  good  without  writing. 
In  ignorant  ages  there  was  no  other  way  of  making  a  will  than  by 
words  or  signs.  But  by  the  time  of  Henry  8,  and  especially  in 
the  age  of  Elizabeth  and  James,  letters  had  become  so  generally 
cultivated,  and  reading  and  writing  so  widely  diifused,  that  verbal, 
unwritten  or  nuncupative  wills  were  confined  to  extreme  cases,  and 
held  to  be  justified  only  upon  a  plea  of  necessity.  They  were 
found  to  be  liable  to  great  frauds  and  abuses  ;  and  a  case  of  fright- 
ful perjury  in  setting  up  a  nuncupative  will  (4  Vesey,  196,  note,) 
gave  rise  to  the  statute  of  frauds,  (29  Charles  2,  ch.  3,)  which 
enacted  that  no  nuncupative  will  should  be  good  when  the  estate  ex- 
ceeded thirty  pounds,  unless  proved  by  three  witnesses  present  at 
the  making  of  it ;  or  unless  it  was  made  in  the  testator's  last  sick- 
ness, and  be  reduced  to  writing  within  six  days  after  the  testator's 
death.  This  regulation  has  been  incorporated  into  the  statute  law 
of  this  country  ;  but  even  these  legislative  precautions  were  insuf- 
ficient to  prevent  the  grossest  frauds  and  perjury  in  the  introduc- 
tion of  nuncupative  wills.  The  whole  subject  underwent  a  thorough 
and  searching  discussion  in  the  court  of  errors,  in  1822,  when  it 
was  held  that  a  nuncupative  will  is  not  good,  unless  it  be  made 
when  the  testator  is  in  extremis,  or  overtaken  by  sudden  and  vio- 
lent sickness,  and  has  not  time  to  make  a  written  will.  {Prince  v. 
Hazleton,  20  John.  502.)  That  case,  no  doubt,  afforded  the  reason 
for  the  legislature,  in  1830,  to  change  the  law,  and  they  did  so  by 
enacting  that  no  nuncupative  or  unwritten  will  bequeathing  per- 
sonal estate,  should  be  valid  unless  made  by  a  soldier  while  in 
actual  military  service,  or  by  a  mariner  while  at  sea.  (2  R.  iS.  60, 
§  22.  3  Id.  141,  5th  ed.  Revisers'  Notes,  3  R.  S.  630.)  It 
is  now  required,  in  the  English  ecclesiastical  courts,  that  a  nun- 
cupative will  be  proved  by  evidence  more  strict  and  stringent  than 
that  applicable  to  a  written  will,  even  in  addition  to  all  the  requi- 


CAPACITY  TO  MAKE  A  WILL— INFANTS.  65 

sites  prescribed  by  the  statute  of  frauds.  (Lemann  v.  Bonsall, 
1  Add.  389.)  And  by  the  new  statute  of  wills,  already  referred 
to,  (1  Vict.  ch.  26,)  nuncupative  wills  are  rendered  invalid  except 
when  made  by  a  soldier  in  actual  military  service,  or  a  mariner,  or 
seaman,  being  at  sea. 

The  further  consideration  of  this  subject  appropriately  falls  un- 
der a  subsequent  chapter,  when  we  shall  treat  of  the  form  and 
manner  of  making  wills  and  codicils,     {See  post,  ch.  %  §  3.) 


CHAPTER  II. 

OF  MAKING,  REVOKING  AND  REPUBLISHING  WILLS,  AND  HEREIN 
OP  THE  PERSONS  CAPABLE   OF  MAKING  A  WILL  OR  CODICIL. 

We  prefer  to  consider  this  subject  more  particularly  with  refer- 
ence to  wills  of  personal  property,  because  it  is  with  that  class  of 
wills  that  the  executor  is  principally  concerned.  Reference,  how- 
ever, will  occasionally  be  made  to  the  law  relative  to  devises,  and 
a  distinct  section  will  be  inserted,  in  its  proper  place,  giving  a  his- 
tory of  the  jurisdiction  of  surrogates'  courts  over  the  proof  of  wills 
of  real  estate,  and  pointing  out  the  mode  of  conducting  such  pro- 
ceedings, and  the  effect  thereof.  But  as  the  testamentary  capacity 
required  to  make  a  will  of  real  estate,  is  the  same  as  that  needed 
for  a  will  of  personal  estate,  and  as  the  form  and  attestation  of  both 
are  in  all  respects  alike,  it  does  not  seem  to  be  necessary  that  the 
two  classes  of  wills  should  be  separately  treated.  With  respect  to 
the  disposing  of  real  estate  by  will,  the  persons  laboring  under 
disabilities  are  idiots ,  persons  of  unsound  mind,  married  women 
and  infants.  (2  R.  S.  57,  §  1.)  The  disability  arising  from  cov- 
erture is  not  without  its  qualifications,  as  will  be  seen  hereafter. 

The  same  disabilities  extend  to  the  making  a  will  of  personal 
estate  ;  except  that  every  male  person  of  the  age  of  eighteen  years 
or  upwards,  and  every  unmarried  female  of  the  age  of  sixteen  years 
or  upwards,  of  sound  mind  and  memory,  are  permitted  to  bequeath 
their  personal  estate,  by  will  in  writing.  (2  R.  S.  60,  §  21.)  The 
terms  unsoundness  of  mind  and  non  compos  mentis  are  con- 
9 


66  CAPACITY  TO  MAKE  A  WILL— INFANTS. 

vertible  terms,  and  mean  the  same  thing.     {Stanton  v.  Wetherwax, 
16  Barb.  262.) 

It  may  be  laid  down  generally,  that  all  persons  are  capable  of 
disposing  of  their  property  by  will,  who  have  sufficient  capacity  to 
make  a  contract,  are  under  no  improper  restraint,  and  have  not 
been  convicted  of  any  crime  to  which  civil  death  or  forfeiture  is 
attached,  or  which  suspends  the  civil  rights  of  the  convict.  We 
shall  consider  these  three  grounds  of  incapacity  ;  1.  The  want  of 
a  testamentary  capacity  ;  2.  Improper  restraint ;  and  3.  The  con- 
viction for  crimes  which  work  a  disqualification. 

Section  I. 
Of  persons  incapable  from  want  of  testamentary  capacity. 

In  this  class,  at  common  law,  are  to  be  reckoned  infants  under 
the  age  of  fourteen  years  if  males,  and  twelve  if  females.  At  these 
ages  the  Roman  law  allowed  of  testaments ;  and  the  civilians 
agree  that  the  ecclesiastical  courts  follow  the  same  rule.  The  New 
York  revised  statutes,  it  has  been  seen,  so  far  altered  the  common 
law,  in  this  respect,  as  not  to  permit  males  till  of  the  age  of  eighteen 
years,  nor  females  till  of  the  age  of  sixteen  years,  to  bequeath  their 
personal  estate  by  will.  (2  R.  S.  60,  §  21.)  In  England,  the  statute 
1  Victoria,  chapter  26,  has  entirely  abolished  the  testamentary  ca- 
pacity of  infants,  and  provided  that  no  will  made  by  a  person  under 
the  age  of  twenty-one  years  shall  be  valid.  This  act  took  effect 
in  1838.  There  is  a  tendency  in  the  legislation  of  the  different 
states  to  fix  the  age  at  which  a  person,  whether  male  or  female, 
may  make  a  will,  either  of  real  or  of  personal  estate,  at  twenty-one 
years.  Such  is  now  said  to  be  the  law  in  Massachusetts,  Delaware, 
Michigan,  Pennsylvania,  New  Hampshire,  Maine,  Indiana,  New 
Jersey,  and  probably  of  some  others.  (1  Jarman  on  Wills,  by 
Perkins,  29.) 

In  some  of  the  states  the  nature  of  the  property  to  be  disposed 
of,  as  whether  it  be  real  or  personal,  determines  the  age  of  testa- 
mentary capacity.  Thus,  in  Rhode  Island,  Virginia,  Arkansas, 
Missouri  and  North  Carolina,  persons  whether  male  or  female  may 
dispose  of  personal  property  by  will  at  eighteen  years  of  age,  and 
of  real  estate  at  twenty-one.     In  Connecticut  the  testator  or  tes- 


CAPACITY  TO  MAKE  A  WILL— INFANTS."  67 

tatrix  must  be  twenty-one  to  devise  real  estate,  and  at  seventeen 
may  bequeath  personal  estate. 

In  other  states  there  is  a  difference  made  between  males  and 
females  with  respect  to  testamentary  age.  In  Maryland  and  Ken- 
tucky, the  ago  required  for  the  validity  of  a  will  of  real,  and  in  Mis- 
sissippi for  the  validity  both  of  a  will  of  real  and  a  will  of  per- 
sonal estate,  is  twenty-one  in  males  and  eighteen  in  females.  In 
Illinois  the  age  of  twenty-one  years  is  required  for  males,  eighteen 
for  females  as  to  real  estate,  and  seventeen  years  for  both  males 
and  females  as  to  personal  estate.  (1  Jarman  on  Wills,  Per- 
kins1 ed.  30.)  In  this  state  it  has  been  seen  that  the  age  of  twen- 
ty-one is  required  for  all  persons,  whether  male  or  female,  as  to 
real  estate,  but  a  male  at  eighteen  and  a  female  at  sixteen  years 
of  age  may  make  a  valid  will  of  personal  estate. 

The  legislation  of  the  different  states  has  been  in  some  measure 
fluctuating  on  this  point.  The  tendency  obviously  is  to  adopt  the 
uniform  rule  prescribed  by  the  late  English  statute  of  wills,  1  Vic- 
toria, chapter  26,  and  to  abolish  entirely  the  testamentary  capacity 
of  all  persons  under  the  age  of  twenty-one  years. 

"When  an  infant  has  attained  the  proper  age,  he  or  she  may 
make  a  will  without  or  against  the  consent  of  their  tutor,  father 
or  guardian.  (1  Bac.  Abr  tit.  Wills,  B.  2.)  But  though  no  objec- 
tion can  be  admitted  to  the  will  of  an  infant  of  eighteen,  if  a  male, 
and  sixteen  if  a  female,  merely  for  want  of  age ;  yet  if  the  testator 
was  not  of  sufficient  discretion,  whether  of  the  age  of  sixteen  or 
sixty,  the  instrument  is  invalid. 

The  language  of  the  revised  statutes,  which  gives  the  power  to 
a  female  person  of  the  age  of  sixteen  years  or  upwards,  not  being 
a  married  woman,  and  no  others,  to  bequeath  their  personal  prop- 
erty by  will  in  writing,  has  occasioned  a  doubt,  whether  a  married 
female  infant  of  the  age  of  sixteen  years  or  upwards,  could  execute 
a  testamentary  instrument,  under  a  power  of  appointment,  either 
as  to  her  real  or  personal  estate.  But  the  right  to  do  so  was  up- 
held by  the  chancellor.     {Strong  v.  Wilkin,  1  Barb.  Ch.  12.) 

An  idiot,  that  is  a  fool  or  madman  from  his  nativity,  who  never 
has  any  lucid  intervals,  was  at  common  law  incapable  of  making  a 
will.  {Beverley's  case,  4  Coke,  124  b.  Slcioart's  Executor  v.  Lis- 
penard,  26  Wend.  255.     Blanchard  v.  Nestle,  3  Dcnio,  37.) 


G8  CAPACITY  TO  MAKE  A  WILL— IDIOTS. 

The  revised  statutes  did  not  in  this  respect  create  a  new  inca- 
pacity, but  merely  recognized  one  that  had  existed  from  the  earli- 
est records  of  the  law.  An  idiot  is  described  to  be  a  person  who 
cannot  number  twenty,  tell  the  days  of  the  week,  does  not  know 
his  own  father  or  mother,  or  his  own  age.  But  these  circumstan- 
ces, though  they  be  evidences  of  idiocy,  yet  they  are  too  narrow 
and  conclude  not  always ;  for  whether  idiot  or  not  is  clearly  a 
question  of  fact,  referable  to  the  circumstances  of  each  particular 
case.  If  an  idiot  should  make  his  will  so  well  and  so  wisely  in 
appearance  that  the  same  may  seem  rather  to  be  made  by  a  rea- 
sonable man  than  by  one  void  of  discretion,  yet  this  testament  is 
void  in  law.  (Swinb.  pt.  2,  §  4,  pi.  5.  7  Bac.  Abr.  tit.  Wills,  b.  1. 
2  Deaths  Med.  Jur.  466.)  Chancellor  Kent,  in  Van  Alst  v.  Hun- 
ter, (5  John.  Ch.  161,)  says  that  the  failure  of  memory  is  not 
sufficient  to  create  the  incapacity  unless  it  be  quite  total,  or  extend 
to  his  immediate  family  and  property.  The  Roman  law  {Code  6, 
24,  14,  and  note  55,)  seemed  to  apply  the  incapacity  only  to  an 
extreme  failure  of  memory,  as  for  a  man  to  forget  his  own  name, 
fatuns  praisumitur  qui  in  proprio  nomine  errat,  and  the  supreme 
court  in  Jackson  v.  King,  (4  Cowen,  207,)  sanction  the  same  doc- 
trine. The  unsoundness  of  mind  which  by  the  statute  works  a 
total  incapacity  for  making  a  will,  means  a  total  deprivation  of 
understanding,  which  is  denominated  idiocy.  {Blanchard  v.  Nes- 
tle, 3  Denio,  37.  Stewart  v.  Lispenard,  26  Wend.  255.)  In 
another  case,  in  speaking  of  the  capacity  to  make  a  deed  which 
depends  upon  the  same  principle,  Ch.  J.  Bronson  says:  "in  the 
absence  of  fraud,  proof  of  mere  imbecility  of  mind  in  the  grantor, 
however  great  it  may  be,  will  not  avoid  the  deed.  There  must  be 
a  total  want  of  understanding."  ( Osterhout  v.  Shoemaker,  3  Denio, 
37,  note.  And  see  also,  to  the  like  effect,  Odell  v.  Buck,  21 
Wend.  142,  and  Petrie  v.  Shoemaker,  24  id.  85.) 

One  who  is  deaf  and  dumb  from  his  nativity  is  in  presumption 
of  law  an  idiot,  and  therefore  incapable  of  making  a  will ;  but  this 
presumption  may  be  rebutted,  and  if  it  sufficiently  appears  that 
he  understands  what  a  testament  means,  and  has  a  desire  to  make 
one,  then  he  may  by  signs  and  tokens  declare  his  testament. 
{Swinb.  pt.  2,  §  4,  pi.  5,  7.)  One  who  is  not  deaf  and  dumb  by 
nature,  but  being  once  able  to  hear  and  speak,  if  by  some  accident 


IDIOTS— DExlF— DUMB—BLIND.  69 

he  loses  both  his  hearing  and  the  use  of  his  tongue,  then,  in  case 
he  be  able  to  write,  he  may  with  his  own  hand  write  his  last  will 
and  testament.  (Id.  §  10.  4  Burns'  E.  L.  60.)  But  if  he  be 
not  able  to  write,  then  he  is  in  the  same  case  as  those  which  be 
both  deaf  and  dumb  by  nature,  i.  e.  if  he  has  understanding  he 
may  make  his  testament  by  signs,  otherwise  not  at  all.     (Id.) 

Such  was  the  ancient  common  law  on  this  subject.  The  enlight- 
ened philanthropy  of  modern  times  has  taken  a  less  gloomy  view 
of  the  condition  of  those  who  are  idiots  from  their  nativity.  It 
has  done  for  them  what  had  before  been  done  for  the  blind,  the 
deaf  and  dumb,  and  for  lunatics.  It  has  established  an  asylum 
which  looks  to  the  education  of  idiots,  thus  repelling  the  presump- 
tion of  their  total  mental  incapacity.  (L.  of  1851,  p.  941,  ch.  502.) 
And  it  is  understood  that  the  institution  has  been  attended  with 
promising  results. 

As  the  revised  statutes  prescribe  the  form  by  which  a  will  is  to 
be  made  and  attested,  which  requires  the  testator  to  declare  the 
instrument  to  be  his  last  will  and  testament,  in  the  presence  of 
two  witnesses,  who  are  required  to  sign  their  names  as  witnesses 
at  the  request  of  the  testator,  (2  R.  S.  63,)  a  literal  compli- 
ance with  the  statute  cannot  be  accomplished  when  the  testator  is 
deaf  and  dumb,  or  blind.  But  the  statute  will  admit  of  a  more 
liberal  interpretation.  When  ideas  cannot  be  communicated  by 
oral  discourse,  they  may  be  transmitted  by  signs  or  by  writing. 
Some  persons  born  deaf  and  dumb  have  shown  great  intelligence ; 
much  more  is  this  predicable  of  those  who  have  become  deaf  and 
dumb  later  in  life.  It  would  be  a  reproach  to  the  jurisprudence 
of  the  country  if  such  persons  could  not  dispose  of  their  property 
by  will.  In  Gombault  v.  The  Public  Administrator,  (4  Bradf. 
226,)  the  will  of  a  person  who  had  been  for  several  years  entirely 
deaf,  was  admitted  to  probate.  The  communications  were  made 
to  him  by  writing  on  a  slate,  and  receiving  his  answers  orally. 
The  surrogate  of  New  York  held,  very  properly,  that  it  was  com- 
petent to  perform  the  ceremonies  of  executing  the  will,  in  that 
mode,  under  the  circumstances,  the  reading  and  signing  of  the  will, 
the  affirmative  response  of  the  testator,  to  the  question  whether  it 
was  his  will,  followed  by  the  signature  of  the  witnesses  in  his 


70  HOLOGRAPH— DEAF— BLIND. 

immediate  presence,  constituted  a  valid  testamentary  act,  involving 
a  substantial  rogation  of  the  witnesses. 

A  testament  written  wholly  by  the  testator's  own  hand  is  called 
a  holograph.  A  holographic  instrument  affords  prima  facie 
evidence  that  the  testator  was  in  his  senses  when  he  wrote  it ; 
unless  the  presumption  is  repelled  by  internal  evidence  of  derange- 
ment, or  by  extrinsic  evidence. 

Such  as  can  speak  and  cannot  hear,  may  make  their  testaments 
as  though  they  could  both  speak  and  hear,  whether  that  defect 
came  by  nature  or  otherwise.  Such  as  are  only  deaf  but  not  dumb, 
may  make  their  testaments.  Such  as  be  speechless  only  and  not 
void  of  hearing,  if  they  can  write  may  very  well  make  their  tes- 
taments themselves  by  writing ;  if  they  cannot  write,  they  may 
also  make  their  testaments  by  signs,  so  that  the  same  signs  be 
sufficiently  known  to  such  as  then  be  present.  (Swinb.  part  2, 
§  10,  pL  2.  Godolph.  pt.  1,  ch.  11.  Gombanlt  v.  The  Public 
Administrator,  4  Brad.  Sur.  R.  226. 1  Wins.  Ex'rs.  17.) 

Persons  born  blind,  or  who  have  become  so  after  birth,  may  nev- 
ertheless make  a  will ;  but  in  the  absence  of  any  special  statutory 
provision  in  their  favor,  they  must  conform,  as  far  as  practicable, 
to  the  requirements  of  the  statute.  The  old  authorities  required 
that  the  will  should  be  read  before  witnesses,  and  in  their  presence 
acknowledged  by  the  testator  for  his  last  will.  {Swin.  pt.  2,  §  11. 
Godolph.  pt.  1,  ch.  11.)  As  the  object  of  reading  over  the  will  to 
the  testator  in  the  presence  of  the  witnesses,  is  to  make  it  certain 
that  he  approved  its  contents,  if  it  can  be  made  to  appear  that  he 
knew  the  contents  of  the  will  at  the  time  he  executed  it,  and  that 
it  was  conformable  to  his  intentions,  it  is  sufficient.  {Fineham  v. 
Edwards,  3  Cartels.  63.)  In  Barton  v.  Robins,  (3  Phillim.  454, 
note,)  Sir  George  Hay  observed  that  a  blind  man's  will  may  be 
established  on  proof  that  he  knew  the  contents,  though  it  was  not 
read  over  to  him  in  the  presence  of  the  subscribing  witnesses. 
And  in  Longchamp  v.  Fish,  (2  New  R.  415,)  the  same  point  was 
established  in  relation  to  a  will  of  lands.  In  Wren  v.  Fitzgerald, 
(2  Bradf.  Sur.  Rep.  42.)  the  surrogate  recommends  that  the  will 
of  a  blind  man  should  be  read  to  him  in  presence  of  the  subscribing 
witnesses. 

The  same  precautions  necessary  for  authenticating  the  will  of  a 


TESTAMENTARY  CAPACITY— THE  ILLITERATE.  71 

blind  man,  seem  in  like  manner  requisite  in  the  case  of  an  illiterate 
person,  who  cannot  read.  For  though  the  law  in  other  cases  may 
presume  that  the  person  who  executes  a  will  knows  and  approves 
of  the  contents  thereof;  yet  that  presumption  ceases,  when  by  de- 
fect of  education  he  cannot  read,  or  by  sickness  he  is  incapacitated 
to  read  the  will  at  that  time.  The  New  York  revised  statutes 
have  provided  that  in  case  the  testator  cannot  write  his  name,  and 
his  signature  is  subscribed  to  the  will  by  another  person,  that 
person  must  also  write  his  own  name  to  the  will  as  a  witness,  under 
the  penalty  of  fifty  dollars  ;  but  his  omission  to  do  so,  nevertheless 
does  not  invalidate  the  will.  (2  R.  S.  64,  §  41.)  Though  the 
statute  does  not  require  it,  it  has  been  strongly  recommended  that, 
when  the  person  executing  the  will  is  not  known  to  the  subscribing 
witnesses  to  be  capable  of  reading  and  writing,  especially  if  he 
executes  the  will  as  a  marksman,  that  the  whole  will  should  be  de- 
liberately read  over  to  him  in  the  presence  and  hearing  of  the 
witnesses,  and  the  fact  of  such  reading  in  his  presence  should  be 
stated  in  the  attestation  clause.  In  case  this  is  not  done,  the 
witnesses  should,  by  inquiries  of  the  illiterate  testator  himself, 
ascertain  the  fact  that  he  was  fully  apprised  of  the  contents  of  the 
instrument  which  he  executed  and  published  as  his  will,  as  well  as 
that  he  was  of  competent  understanding  to  make  a  testamentary 
disposition  of  his  property.  All  these  things,  however,  says  the 
chancellor,  are  matters  of  precaution  and  prudence,  to  prevent  any 
well  founded  doubt  upon  matters  of  fact ;  and  when  they  are  neg- 
lected it  does  not  necessarily  render  the  will  invalid,  if  the  court 
and  jury  which  are  to  pass  upon  the  question  of  its  validity  are 
satisfied,  upon  the  whole  evidence,  that  the  will  was  duly  executed, 
and  that  the  testator  understood  its  contents.  (Chaffee  v.  Baptist 
Miss.  Convention ,  10  Paige,  90, 1,  per  Walworth,  chancellor.) 

In  Barton  v.  Robins,  {supra,)  it  was  observed  that  in  point  of 
law,  if  the  writer  of  the  will  was  benefited  thereby,  e.  g.  made  a 
legatee,  he  must  show  that  the  contents  of  the  will  were  known 
to  the  testator.  In  a  leading  case  on  this  subject,  it  was  held  that 
if  a  party  writes  or  prepares  a  will  under  which  he  takes  a  benefit, 
that  is  a  circumstance  which  ought  generally  to  excite  the  suspi- 
cion of  the  court,  and  call  upon  it  to  be  vigilant  and  jealous  in 
examining  the  evidence  in  support  of  the  instrument,  in  favor  of 


72  WHEN  TO  BE  READ— UNSOUND  MIND. 

which  it  ought  not  to  pronounce  unless  the  suspicion  is  removed, 
and  it  is  judicially  satisfied  that  the  paper  propounded  docs  express 
the  true  will  of  the  deceased.  {Barry  v.  Butlin,  1  Curt.  Eccl.  R. 
637.     Crispell  v.  Dubois,  4  Barb.  397.) 

It  is  not  usual  to  have  the  will  read  in  the  presence  of  the  wit- 
nesses, nor  is  it  necessary  in  any  case.  If  the  testator  knows  the 
contents  at  the  time  of  publication,  it  is  enough.  Publication  itself 
is  presumptive  evidence  that  the  testator  was  apprised  of  what  the 
will  contained.  It  is  only  when  circumstances  of  suspicion  are 
shown,  that  the  party  seeking  to  establish  the  will  can  be  required 
to  show  that  the  testator  had  heard  it  read,  or  knew  of  its  contents. 
When  it  is  shown  that  the  testator  is  deprived  of  his  hearing,  or 
seeing,  or  that  he  is  a  very  illiterate  person,  or  that  the  party  by 
whom  it  was  prepared  derives  a  benefit  under  it,  a  prudent  jeal- 
ousy seems  to  require  some  evidence  of  the  testator's  acquaintance 
with  the  contents  of  the  instrument,  in  addition  to  the  presumption 
derived  from  publication.  But  every  case  must  depend  on  its  own 
circumstances. 

The  statute  disqualification  of  unsound  mind  embraces  every 
other  form  of  mental  incapacity,  not  amounting  to  idiocy.  The 
phrase  unsoundness  of  mind,  has  been  sometimes  objected  to,  but 
without  reason.  (1  Beck's  Med.  Jur.bll.)  It  seems  to  have  come 
into  use  as  a  technical  expression,  soon  after  the  proceedings  of  the 
courts  were  required  to  be  in  English  instead  of  Latin.  Lord 
Hardwicke,  in  Ex  parte  Barnsley,  (3  Atk.  171, )  in  speaking  of  the 
form  of  a  return  to  an  injunction  of  lunacy,  says  that  the  ancient 
form,  when  the  proceedings  were  in  latin,  was  lunaticus  or  non 
compos  mentis,  or  insane  mentis,  and  since  proceedings  have  been 
in  English,  of  unsound  mind,  which  amounts  to  the  same  thing. 
The  subject  of  mental  alienation  arises  in  a  variety  of  forms. 
Very  frequently,  embarrassing  questions  are  suggested  in  exe- 
cuting a  commission  in  the  nature  of  a  writ  de  lunatico  inquirendo, 
and  by  the  proper  return  to  which  the  courts  obtain  jurisdiction 
to  appoint  a  committee  of  the  person  and  estate.  At  other  times 
the  question  arises  on  an  indictment  for  a  criminal  offense,  when 
the  accused  claims  immunity  on  the  ground  of  this  dreadful  visi- 
tation. Again  the  controversy  arises  as  to  the  legal  capacity  to 
make  a  will  or  a  deed,  or  other  contract.     Although  in  all  these 


TESTAMENTARY  CAPACITY— LUNATICS.  73 

cases  there  arc  some  principles  which  are  common,  yet  there  arc 
diversities  arising  from  their  different  application.  The  subject  in 
all  its  bearings  belongs  to  and  has  been  well  treated  in  numerous 
works  on  medical  jurisprudence,  to  which  the  studious  reader  is 
referred.  (*S'ee  1  Beck's  Med.  Jur.  534  to  661.  Dean's  Med.  Jur. 
457  et  seq.  Guy's  do.  278  et  seq.)  In  this  work  we  have  only 
room  to  treat  the  subject  in  a  brief  and  general  way,  so  far  as  it 
relates  to  the  testamentary  capacity  of  testators. 

A  lunatic,  or  person  non  compos  mentis,  or  which  is  the  same 
thing,  a  person  of  unsound  mind,  {Blanchard  v.  Nestle,  3  Denio, 
42,)  is  one  who  has  had  understanding,  but  by  disease,  grief,  or 
other  accident,  hath  lost  the  use  of  his  reason.  A  lunatic  is,  indeed, 
properly  one  that  hath  lucid  intervals;  sometimes  enjoying  his 
senses  and  sometimes  not ;  and  that,  as  was  formerly  supposed, 
frequently  depending  on  the  changes  of  the  moon.  But  under  the 
general  name  non  compos  mentis,  (which  Sir  Edward  Coke  says 
is  the  most  legal  name,)  are  comprised  not  only  lunatics,  but  per- 
sons under  frenzies,  or  who  lose  their  intellects  by  disease  ;  those 
that  grow  deaf,  dumb,  blind,  not  being  born  so.  {Beverly's  case, 
4  Coke,  124.     1  Bl.  Com.  304.) 

Between  this  condition  of  the  human  mind  and  its  brightest  state 
of  unclouded  intelligence,  there  are  infinite  grades,  though  perhaps 
not  easily  marked  by  definite  boundaries.  But  it  is  the  unvarying 
doctrine  of  the  English  books,  that  the  man  of  mean  understand- 
ing, yea,  though  he  incline  to  the  foolish  sort,  is  not  prohibited  to 
make  a  testament.  {Sickib.  127,  8.)  This  ancient  rule  is  thus 
expressed  by  a  late  text  writer  on  this  subject,  {Shelf or d  on 
Lunacy,  37,)  and  approved  by  the  court  of  errors  in  Stewart  v. 
Lisjienard,  (26  Wend.  301.)  "A  person's  being  of  weak  under- 
standing, so  he  be  neither  an  idiot  or  lunatic,  is  no  objection  in 
law  to  his  disposing  of  his  estate.  Courts  will  not  measure  the 
extent  of  people's  understanding  or  capacities ;  if  a  man,  therefore, 
be  legally  compos  mentis,  be  he  wise  or  unwise,  he  is  the  disposer 
of  his  oavii  property,  and  his  will  stands  as  a  reason  for  his  actions." 
{See  also  Jackson  v.  King,  4  Cowen,  217  ;  Blanchard  v.  Nestle, 
3  Denio,  42 ;   Odell  v.  Buck,  21  Wend.  142.) 

A  lunatic,  during  the  time  of  his  insanity  or  the  paroxysm  of 
the  disease,  cannot  make  a  testament  nor  dispose  of  any  thing  by 
10 


74  TESTAMENTARY  CAPACITY— LUCID  INTERVAL. 

will.  "  So  strong  is  this  impediment  of  insanity  of  the  mind,  that 
if  the  testator  make  his  testament,  after  this  furor  has  overtaken 
him,  and  while  as  yet  it  possesses  his  mind,  although  the  furor, 
after  departing  or  ceasing,  the  testator  recover  his  former  under- 
standing, yet  does  not  the  testament  made  during  his  former  fit 
recover  any  force  or  strength  thereby."  (Swinb.  pt.  2,  §  3,  pi.  2. 
Godot  pt.  1,  ch.  8,  §  2.) 

The  general  principles  in  relation  to  testamentary  capacity  are 
well  understood.  The  great  difficulty  consists  in  applying  them 
to  the  testimony  in  each  particular  case.  On  one  occasion  the 
chancellor  said  that  the  testator  must  be  of  sound  and  disposing 
mind  and  memory,  so  as  to  be  capable  of  making  a  testamentary 
disposition  of  his  property  with  sense  and  judgment,  in  reference 
to  the  situation  and  amount  of  such  property,  and  to  the  relative 
claims  of  the  different  persons  who  are  or  might  be  the  objects  of 
his  bounty.  (Clark  v.  Fisher,  1  Paige,  173.  Clark  v.  Sawyer, 
2  Barb.  Ch.  411 ;  8.  C.  2  Comst.  498.  Marquis  of  Winches- 
ter's case,  6  Coke's  R.  23.     Den  v.  Johnson,  2  South.  R.  458.) 

The  sanity  of  a  testator  is  presumed,  until  the  contrary  appears. 
The  burden  of  proof,  as  to  mental  capacity,  lies  on  the  party  who 
alleges  insanity.  (Jackson  v.  Van  Dusen,  5  John.  R.  144.)  If 
he  succeeds  in  proving  that  the  testator  had  been  affected  by 
habitual  derangement,  then  it  is  for  the  other  party,  who  claims 
under  the  will,  to  adduce  satisfactory]  proof  that  at  the  time  of 
making  the  will  the  testator  had  a  lucid  interval,  and  was  restored 
to  the  use  of  his  reason.  (2  Phil.  Ev.  1th  Lond.  ed.  293.  Jack- 
son v.  Van  Dusen,  5  John.  144.     Evans  v.  Thomas,  2  Hag.  433.) 

Lord  Thurlow,  in  one  case,  observed  that  the  evidence  of  a 
lucid  interval,  after  the  proof  of  a  general  derangement  at  any 
particular  period,  should  be  as  strong,  as  when  the  object  of  the 
proof  is  to  establish  derangement.  This  rule  has  been  justly 
questioned.  It  is  no  doubt  true  that  when  derangement  has  been 
proved,  a  lucid  interval  must  be  satisfactorily  established.  But 
there  appears  to  be  no  reason  for  requiring  in  the  proof  of  these 
several  facts,  precisely  the  same  measure  of  evidence,  or  the  same 
degree  of  demonstration.  It  is  possible  that  both  facts  may  be 
most  satisfactorily  established,  though  the  proof  in  the  one  case 
may,  perhaps,  not  be  so  strong  or  demonstrative  as  in  the  other. 


TESTAMENTARY  CAPACITY— LUCID  INTERVAL.  75 

Insanity,  from  its  peculiar  nature,  admits  of  more  easy  and  ob- 
vious proof,  than  the  existence  of  a  lucid  interval.  The  wildncss 
and  unnatural  appearance  of  insanity  can  never  be  misunderstood  ; 
but  whether  light  and  reason  have  been  restored,  is  often  a 
question  of  the  greatest  difficulty.  (2  Phil.  Ev.  1th  ed.  294.) 
Sir  John  Nicholl  in  White  v.  Bows,  (1  Phill.  R.  88,)  very  justly 
observes  "  that  it  is  scarcely  possible  to  be  too  strongly  impressed 
Avith  the  great  degree  of  caution  necessary  to  be  observed  in  ex- 
amining the  proof  of  a  lucid  interval  ;  but  the  law  recognizes 
acts  done  during  such  an  interval  as  valid,  and  the  law  must  not 
be  defeated  by  any  overstrained  demands  of  the  proof  of  the  fact." 

It  is,  perhaps,  proper  in  this  place  to  consider  some  of  the 
cases  which  have  been  decided  on  this  branch  of  the  subject. 
It  is  undeniably  true  that  a  lunatic  person  may  have  clear  or 
calm  intermissions  of  the  disease.  Such  intermission  is  usually 
denominated  a  lucid  interval.  During  the  quietness  and  freedom  of 
mind  which  occurs  in  such  an  interval,  it  is  well  settled  that  he 
may  make  his  will  disposing  of  his  property  and  appointing  his 
executors.  The  establishment  of  a  lucid  interval  repels,  for  the 
time  being,  the  presumption  of  incapacity  resulting  from  the 
proof  of  insanity.  The  proof  of  such  remission  of  the  disease,  as 
well  as  the  proof  of  the  original  incapacity,  is  often  to  be  extract- 
ed from  contradictory  testimony,  mingled,  it  may  be,  with  the 
opinions  and  prejudices  of  the  witnesses.  These  considerations 
should  inspire  the  court  with  caution,  and  admonish  it  to  form  its 
judgment  by  facts  proved  and  by  acts  done,  rather  than  by  the 
judgments  of  others.*  (See  remarks  of  Sir  John  Nicholl  in 
White  v.  Driver,  supra  ;  Brogdeu  v.  Brown,  2  Adol.  441.) 

One  of  the  most  remarkable  cases  on  record,  and  which  best 
seems  to  illustrate  the  doctrine  of  a  lucid  interval,  occurred 
in  England  in  1809,  in  the  case  of  Cartwright  v.  Cartwright, 
1  Phillim.  90.)  An  abridgment  of  the  case  is  essential  in  order 
to  present  the  principles  decided.  In  that  case  it  appeared 
that  the  testatrix  was  early  in  life  affected  with  the  disorder  of 
her  mind  ;  she  was  afterwards  supposed  to  be  perfectly  recovered, 
and  continued  for  several  years  to  conduct  a  house  and  establish- 
ment of  her  own,  as  a  rational  person  ;  but  her  habit  and  condition 
of  body,  and  her  manner  for  several  months  before  the  date  of  her 


76  TESTAMENTARY  CAPACITY— LUCID  INTERVAL. 

will,  were  those  of  a  person  afflicted  with  many  of  the  worst  symp- 
toms of  insanity,  and  continued  so  after  making  the  will.  She 
was  attended  by  her  physician,  who  desired  the  nurse  and  other 
servants  to  prevent  her  from  reading  and  writing,  as  such  occupa- 
tion mio-ht  disturb  her  head ;  and,  in  consequence  thereof,  she  was 
for  some  time  kept  from  the  use  of  books,  and  writing  materials  ; 
however,  some  time  before  writing  the  will,  she  became  very  im- 
portunate for  the  use  of  pen  and  paper,  and  frequently  asked  for 
them  in  a  very  clamorous  manner.  The  physician,  in  order  to 
quiet  and  gratify  her,  consented  that  she  should  have  them,  telling 
her  nurse  and  other  servants  that  it  did  not  signify  what  she 
might  write,  as  she  was  not  fit  to  make  any  proper  use  of  them. 
As  soon  as  her  physician  had  given  permission,  pen,  ink  and  paper 
were  carried  to  her,  and  her  hands,  which  had  for  some  time  been  kept 
constantly  tied,  were  let  loose,  and  she  sat  down  at  her  bureau,  and 
desired  her  nurse  and  servants  to  leave  her  alone  while  she  wrote. 
They  went  into  an  adjoining  room  and  watched  her  ;  at  first  she 
wrote  upon  several  pieces  of  paper,  and  got  up  in  a  wild  and  furious 
manner,  and  tore  the  papers  and  threw  them  into  the  fire  one  after 
another.  After  walking  up  and  down  the  room  many  times,  in  a 
wild  and  disordered  manner,  muttering  to  herself,  she  wrote  the 
will.  She  inquired  the  day  of  the  month,  and  an  almanac  was 
given  her  by  one  of  the  nurses,  and  the  day  pointed  out  to  her. 
She  then  called  for  a  candle  to  seal  the  paper,  which  was  given  to 
her,  and  used  by  her  for  that  purpose,  although  they  used  generally 
to  be  cautioned  not  to  trust  her  with  a  candle,  and  were  forced  to 
hold  it  at  a  distance  from  her  when  she  read  the  newspaper.  The 
survivor  of  the  two  witnesses  to  the  transaction  deposed,  that  in 
her  opinion  the  testatrix  had  not  then  sufficient  capacity  to  be  able 
to  know  what  she  did,  and  that  during  the  time  she  was  occupied 
in  writing,  which  was  upwards  of  an  hour,  she  by  her  manner  and 
gestures  showed  many  signs  of  insanity.  The  will  was  written  in 
a  remarkably  fair  hand  ;  and  without  a  blot  or  mistake  in  a  single 
word  or  letter  ;  and  it  was  a  proper  and  natural  will,  and  con- 
formable to  what  her  affections  were  proved  to  be  at  the  time, 
and  her  executors  and  trustees  were  very  discreetly  appointed. 
Two  months  after  the  writing  <>f  the  will,  in  a  conversation  with  the 
mother  of  the  parties  benefited  by  the  will,  the  testatrix  mentioned 


TESTAMENTARY  CAPACITY— LUCID  INTERVAL.  77 

that  she  had  made  a  will,  and  ordered  her  servant  to  bring  it,  and 
she  then  delivered  it  to  her  mother,  observing  that  there  was  no 
need  of  witnesses,  as  the  estate  was  all  personal  and  the  will  in  her 
own  handwriting.  Sir  W.  Wynne  pronounced  the  will  to  be  the 
legal  will  of  the  deceased,  and  further  said  that  in  his  apprehension 
the  forming  of  the  plan,  and  pursuing  and  carrying  it  into  effect 
with  propriety  and  without  assistance,  would  have  been  sufficient 
to  establish  an  interval  of  reason,  if  there  had  been  no  other  evi- 
dence ;  but  it  was  further  affirmed  by  the  recognition  and  delivery 
of  the  will.  From  this  sentence  an  appeal  was  interposed  to  the 
high  court  of  delegates,  who  affirmed  the  judgment  of  Sir  William 
Wynne.  (1  Phillim.  122.)  That  very  eminent  judge,  in  the 
course  of  giving  sentence  below,  after  remarking  that  the'  court 
did  not  depend  on  the  opinion  of  the  witnesses,  but  on  the  facts  to 
which  they  deposed,  delivered  the  following  observations : 

"  The  strongest  and  best  proof  that  can  arise  as  to  a  lucid  inter- 
val, is  that  which  arises  from  the  act  itself  of  making  the  will ; 
that  I  look  upon  as  the  thing  to  be  first  examined,  and  if  it  can  be 
proved  and  established  that  it  is  a  rational  act,  rationally  done,  the 
whole  case  is  proved.  What  can  you  do  more  to  establish  the  act ; 
because,  suppose  you  are  able  to  show  the  party  did  that  which 
appears  to  be  a  rational  act,  and  it  is  his  own  act  entirely,  nothing 
is  left  to  presumption  in  order  to  prove  a  lucid  interval.  Here  is 
a  rational  act,  rationally  done.  In  my  apprehension,  when  you 
are  able  completely  to  establish  that,  the  law  does  not  require  you 
to  go  further ;  and  the  citation  from  Swinburn  (pt.  2,  §  3,  pi.  14,) 
states  it  to  be  so.  The  manner  he  has  laid  it  down  is,  '  If  a  luna- 
tic person,  or  one  that  is  beside  himself,  at  some  times  but  not  con- 
tinually, makes  his  testament,  and  it  is  not  known  whether  the 
same  was  made  while  he  was  of  sound  mind  and  memory  or  not, 
then  in  case  the  testament  be  so  conceived  as  thereby  no  argument 
of  frenzy  or  folly  can  be  gathered,  it  is  to  be  presumed  that  the 
same  was  made  during  the  time  of  his  calm  and  clear  intermission, 
and  so  the  testament  shall  be  adjudged  good  ;  yea  although  it  can- 
not be  proved  that  the  testator  useth  to  have  any  clear  and  quiet 
intermissions  at  all,  nevertheless  I  suppose,  that  if  the  testament 
be  wisely  and  orderly  framed,  the  same  ought  to  be  accepted  for  a 
lawful  testament.'     Unquestionable7,  (continues  Sir  Wm.  Wynne,) 


78  TESTAMENTARY  CAPACITY— LUCID  INTERVAL. 

there  must  be  a  complete  and  absolute  proof  that  the  party  who  had 
so  framed  it,  did  so  without  assistance.  If  the  fact  be  so  that  he 
has  done  as  rational  an  act  as  can  be,  without  any  assistance  from 
another  person,  what  there  is  more  to  be  proved  I  don't  know,  un- 
less the  gentleman  could  prove  by  any  other  authority  or  law,  what 
the  length  of  the  lucid  interval  is  to  be,  whether  an  hour,  a  day  or  a 
month.  I  know  no  such  law  as  that ;  all  that  is  wanting  is,  that 
it  should  be  of  sufficient  length  to  do  the  rational  act  intended.  I 
look  upon  it,  if  you  are  able  to  establish  the  fact  that  the  act  done 
is  perfectly  proper,  and  that  the  party  who  is  alleged  to  have  done 
it  was  free  from  the  disorder  at  the  time,  that  is  completely  suffi- 
cient." In  accordance  with  the  foregoing  principles,  Sir  John 
Nicholls,  in  Scrnby  v.  Fordham,  (1  Add.  90,)  adopts  the  general 
rule  that  when  a  will  is  traced  into  the  hands  of  a  testator,  whose 
sanity  is  once  fairly  impeached,  but  of  whose  sanity  or  insanity  at 
the  time  of  doing  or  performing  some  act,  with  relation  to  that  will, 
there  is  no  direct  evidence,  the  agent  is  to  be  inferred  rational,  or 
the  contrary,  from  the  character  broadly  taken,  of  the  act. 

In  the  case  of  McAdam  v.  Walker,  (1  Dow,  178,)  Lord  Chan- 
cellor Eldon  mentioned  that  he  had  been  concerned  as  counsel  in  a 
cause  where  a  gentleman  who  had  been  for  some  time  insane,  and 
who  had  been  confined  till  the  hour  of  his  death  in  a  mad-house,  had 
made  a  will  while  so  confined.  The  question  was  whether  he  was 
of  sound  mind  at  the  time  of  making  this  testament.  It  was  a  will 
of  large  contents,  proportioning  the  different  provisions  with  the 
most  prudent  and  proper  care,  with  a  due  regard  to  what  he  had 
previously  done  to  the  objects  of  his  bounty,  and  in  every  respect 
pursuant  to  what  he  had  declared  before  his  malady  he  intended  to 
have  done.     It  was  held  that  he  was  of  sound  mind  at  the  time. 

In  the  three  last  cited  cases  the  act  was  not  only  done  and  com- 
pleted by  the  testator  himself,  bat  the  will  7vas  proper  and  nat- 
ural. That  this  is  an  important  if  not  an  indispensable  ingredient 
to  establish  the  sanity  of  the  testator,  in  cases  of  this  nature, 
may  be  inferred  from  the  case  of  Clark  v.  Lear,  (1  Phill.  119.) 
In  that  case  the  will  was  written  by  the  testator  himself,  and 
with  great  accuracy,  but  was  made  in  favor  of  a  person  to  whom 
he  had  no  good  cause  whatever  to  give  a  benefit.  It  was  held 
that  the  act  of  framing  such  an  instrument  furnished  no  proof  of 


TESTAMENTARY  CAPACITY— LUCID  INTERVAL.  79 

ii  lucid  interval.  The  result  of  the  cases  seems  to  authorize  us 
in  saying,  that  proving  that  the  testator  drew  his  will  without 
assistance  when  the  will  appears  to  he  regularly  and  orderly 
written,  and  makes  a  proper  and  natural  disposition  of  the  estate, 
so  as  to  conform  to  what  may  be  supposed  to  be  the  affections  and 
wishes  of  a  person  in  his  situation,  constitutes  of  itself  evidence 
of  a  lucid  interval,  a  previous  derangement  having  been  shown. 

Those  cases  have  carried  the  doctrine  to  its  extreme  length, 
but  they  have  never  been  overruled  either  in  England  or  in  this 
country ;  but  on  the  contrary  are  recognized  by  elementary  trea- 
tises on  both  sides  of  the  Atlantic,  as  good  law.  (2  Phil.  Ev. 
1th  Loud.  ed.  295.  1  Wms.  Etfrs,  21  et  seq.  2  Greenl.  Ev. 
§  689.  Demi's  Medical  Jurisprudence,  528,  529.  1  Jarman  on 
Wills,  67  et  seq.)  In  a  recent  case  in  the  ecclesiatical  courts 
at  doctors  commons,  (in  1852,)  Dr.  Lushington,  in  delivering  his 
judgment  in  Bannatyne  v.  Bannaiyne,  (14  Eng.  Law  and  Eq. 
Rep.  595,)  and  referring  to  the  opinion  of  Sir  William  Wynne, 
in  Cartwright  v.  Cartwright  that  a  rational  act  done  in  a  rational 
manner  was  the  strongest  and  best  proof  of  a  lucid  interval,  ob- 
served, that  he  could  not  altogether  subscribe  to  that  opinion, 
though  he  admitted  that  to  a  certain  extent  a  rational  act  done  in 
a  rational  manner,  though  not  the  strongest  and  best  proof  of  a 
lucid  interval,  did  contribute  to  the  establishment  of  a  lucid  inter- 
val. In  Hix  v.  Whittemore,  (4  Mete.  545,)  the  case  of  Cart- 
wright v.  Cartwright,  is  cited  with  approbation,  though  this  pre- 
cise point  was  not  the  question  before  the  court.  In  Gombault  v. 
The  Public  Administrator,  (4  Bradf.  Sur.  Rep.  239,)  the  case  of 
Cartwright  v.  Cartwright  is  cited,  and  the  great  influence  of  the 
nature  of  the  act,  upon  the  evidence  of  a  lucid  interval  is  admitted, 
without  however  acceding  to  the  entire  length  and  breadth  of  the 
views,  on  this  subject,  of  Sir  William  Wynne. 

The  difficulty  of  proving  a  lucid  interval  is  greater  in  the  case 
of  permanent,  proper  insanity,  than  in  the  case  of  delirium.  The 
reason  of  this  is  given  by  Sir  John  Nicholl,  in  Brogden  v.  Brown, 
(2  Adol.  445.)  "  In  cases  of  permanent,  proper  insanity,"  he  ob- 
serves, "  the  proof  of  a  lucid  interval  is  matter  of  extreme  diffi- 
culty, for  this  among  other  reasons,  namely,  that  the  patient  so 
affected  is  not  unfrequently  rational  to  all  outward  appearances. 


80  LUCID  INTERVAL— PARTIAL  INSANITY. 

■without  any  real  abatement  of  his  malady  ;  so  that  in  truth  and 
substance,  he  is  just  as  insane,  in  his  apparently  rational,  as  he  is 
in  his  visible  raving  fits.  But  the  apparently  rational  intervals 
of  persons,  merely  delirious,  for  the  most  part,  are  really  such. 
Delirium  is  a  fluctuating  state  of  mind,  created  by  temporary 
excitement,  in  the  absence  of  which,  to  be  ascertained  by  the  ap- 
pearance of  the  patient,  the  patient  is  most  commonly  really  sane. 
Hence,  in  most  instances  in  cases  of  delirium,  the  probabilites  in 
favor  of  a  lucid  interval  are  infinitely  stronger  in  a  case  of  deli- 
rium, than  in  one  of  permanent,  proper  insanity ;  and  the  difficulty 
of  proving  a  lucid  interval  is  less  in  the  same  exact  proportion  in 
the  former  than  it  is  in  the  latter  case. 

The  doctrine  which  has  been  hitherto  considered  has  originated 
in  cases  of  general  insanity.  But  the  question  will  sometimes 
arise,  whether  the  existence  of  partial  insanity  will,  under  any 
and  what  circumstances,  be  sufficient  to  invalidate  a  will.  The 
weight  of  authority  on  this  subject  seems  to  be  that  if  the  testa- 
mentary act  can  be  traced  to  the  morbid  delusion,  and  is  the  result 
of  that  delusion,  then  the  act  is  invalid,  though  the  testator  at  the 
time  of  making  the  will,  was  sane  in  other  respects,  upon  ordinary 
subjects.  A  brief  reference  to  a  few  of  the  cases  on  this  subject 
will  be  sufficient  to  illustrate  the  doctrine. 

The  first  to  which  we  will  refer  is  that  of  Greenwood,  (stated  in 
White  v.  White,  by  Lord  Er shine,  13  Yes.  89.)  Mr.  Green- 
wood was  bred  to  the  bar,  but  becoming  diseased,  and  receiving  in 
a  fever  a  draught  from  the  hand  of  his  brother,  the  delirium  tak- 
ing its  ground  then,  connected  itself  with  that  idea,  and  he  con- 
sidered his  brother  as  having  given  him  a  potion  with  a  view  to 
destroy  him.  He  recovered  in  all.  other  respects,  but  that  morbid 
image  never  departed  ;  and  that  idea  appeared  connected  with  the 
will,  by  which  he  disinherited  his  brother,  who  was  his  only  next 
of  kin.  Two  conflicting  verdicts  were  had  in  the  case,  at  common 
law.  The  suit  ended  in  a  compromise.  On  the  trial  of  the  cause, 
before  Lord  Kenyon,  his  lordship,  in  his  charge  to  the  jury,  after 
remarking  on  the  conduct  of  the  deceased  towards  his  brother, 
which  had  been  detailed  in  the  evidence,  amongst  other  things 
said :  <:  It  is  for  you  to  look  at  that  conduct  to  his  brother,  to  see 
whether  it  is  evidence  of  derangement  of  mind,  or  whether  only 


TESTAMENTARY  CAPACITY— PARTIAL  INSANITY.         81 

an  unreasonable  prejudice  which  he  indulged  against  his  brother ; 
if  it  be  the  last,  that  did  not  unfit  him  to  make  his  last  will  and 
testament."  "  If  you  think  that  whenever  that  topic  occurred  to 
him,  it  totally  deranged  his  mind  and  prevented  him  from  judging 
of  who  the  objects  of  his  bounty  should  be,  according  to  his  own 
will,  then  the  will  cannot  stand,  and  then  you  will  find  for  the  de- 
fendant ;  but  if  you  think  he  was  of  competent  mind  to  make  his 
will,  to  exercise  his  judgment,  however  that  might  be  disturbed 
by  passions  which  ought  not  to  be  encouraged,  then  the  will  ought 
to  stand."  (3  Curteis,  App.  30  et  seq.  1  Jarman  on  Wills, 
Perkins1  ed.  60.) 

The  case  of  Dew  v.  Clark  is  a  strong  case  upon  the  same 
point.  (1  Add.  279.  3  id.  79.)  It  must  be  considered  as  estab- 
lishing the  doctrine,  that  partial  insanity  will  invalidate  a  Avill 
which  is  fairly  inferred  the  direct  offspring  of  that  insanity.  There 
the  case  pleaded  by  an  only  daughter  in  a  responsive  allegation, 
in  the  prerogative  court,  in  opposition  to  her  father's  will,  was, 
that  besides  laboring  under  mental  perversion  in  some  other  par- 
ticulars, especially  on  religious  subjects,  the  deceased  had  an  insane 
aversion  to  his  daughter,  and  was  actuated  solely  by  that  illusion 
to  dispose  of  his  property  in  the  manner  in  which  it  was  purported 
to  be  conveyed  by  the  contested  will.  This  allegation  was  opposed 
as  inadmissible,  on  behalf  of  parties  claiming  under  the  will.  But 
Sir  John  Nicholl  admitted  it,  and  after  remarking  that  the  case 
set  up  was  one  of  partial  insanity,  as  to  a  particular  person,  and 
approving  the  dictum  in  Greenwood's  case,  {supra)  he  observed 
"  that  the  burden  of  proof  was  upon  the  daughter,  who  contested 
the  will,  and  that  she  must  understand  that  no  course  of  harsh 
treatment — no  sudden  bursts  of  violence — no  display  of  unkind  or 
even  unnatural  feeling  merely,  can  avail  in  proof  of  her  allegation. 
She  can  only  prove  it  by  making  out  a  case  of  antipathy,  clearly 
resolvable  into  mental  perversion,  and  plainly  evincing  that  the 
deceased  was  insane  as  to  her,  notwithstanding  his  general  sanity." 
After  the  evidence  had  been  gone  through  on  both  sides,  the  same 
learned  judge  delivered  his  judgment  that  the  will  being  proved 
to  be  the  direct  unqualified  offspring  of  a  morbid  delusion,  as  to 
the  character  and  conduct  of  the  daughter,  being  the  very  creature 
of  that  morbid  delusion,  put  into  act  and  energy,  the  deceased 
11 


82         TESTAMENTARY  CAPACITY— PARTIAL  INSANITY. 

must  be  considered  insane  at  the  time  of  making  the  will,  and  con- 
sequently the  will  itself  was  null  and  void  in  law.  (3  Add.  208.) 
The  subject  of  partial  insanity  was  elaborately  and  ably  discussed 
by  the  learned  judge,  but  we  have  not  room  for  his  observations. 
This  judgment  was  afterwards  confirmed  by  the  court  of  delegates. 
A  commission  of  review  was  then  applied  for,  before  the  Lord 
Chancellor  (Lyndhurst,)  but  refused.     (5  Russ.  Ch.  Cases,  163.) 

The  same  doctrine  has  been  acted  upon  in  this  state.  Thus,  in 
Waters  v.  Cullen,  (2  Bradf.  Rep.  354,)  the  will  of  the  testatrix 
was  successfully  contested,  and  was  set  aside  on  the  ground  of 
insanity.  The  testatrix  died  of  delirium  tremens,  to  which  dis- 
ease she  had  been  subject  more  or  less  for  some  time  before  her 
death.  She  gave  her  property,  consisting  of  a  house  and  lot  in 
the  city  of  New  York,  to  her  children  by  her  first  husband,  and 
left  her  children  by  her  last  husband,  penniless.  She  advanced 
as  a  reason  for  this,  that  the  property  in  question  came  from  the 
estate  of  her  first  husband.  It  appeared,  also,  that  at  the  time 
she  made  the  will  she  believed  that  she  had  been  poisoned  by  the 
father  of  the  children  whom  she  left  unprovided  for.  The  surro- 
gate thought  that  she  labored  under  an  insane  delusion  in  both 
respects,  and  though  both  the  subscribing  witnesses  thought  the 
mind  of  the  testatrix  sound,  the  surrogate  believing  that  she  acted 
under  an  insane  delusion,  as  abovementioned,  rejected  the  will. 

In  connection  with  the  subject  of  partial  insanity  it  may  be 
proper  here  to  remark,  that  by  the  Roman  law  testaments  might 
be  set  aside  as  being  inofficiosa,  deficient  in  natural  duty,  if  they 
totally  passed  by  (without  assigning  a  true  and  sufficient  reason,) 
any  of  the  children  of  the  testator ;  though  if  the  child  had  any  leg- 
acy, however  small,  it  was  proof  that  the  testator  had  not  lost  his 
memory  or  his  reason,  which  otherwise  the  law  presumed.  But  our 
law  makes  no  such  constrained  supposition  of  forgetfulness  or  in- 
sanity. And  therefore,  though  the  heir  or  next  of  kin  be  totally 
omitted,  it  admits  no  querela  inofficiosi,  to  set  aside  such  testament. 
(2  Bl.  Com.  503.) 

But  the  ecclesiastical  courts  require  evidence  of  full  and  entire 
capacity  in  the  testator  to  support  a  will  which  is  inofficious, 
and  not  consonant  with  the  testator's  natural  affections  and  moral 
duties  ;  and  especially  when  it  is  obtained  by  the  party  materially 


TESTAMENTARY  CAPACITY— MORAL  INSANITY.  83 

benefited  by  it.  In  such  cases  it  is  said  there  must  be  direct  evi- 
dence of  instructions,  especially  if  the  testator's  capacity  is  in  any 
respect  doubtful.  (Brogden  v.  Brown,  2  Add.  441,  449.  3  id. 
207,  208.)  The  strictness  of  the  rule  of  evidence  in  such  cases  is 
by  way  of  precaution,  for  our  law  considers  that  the  natural  affec- 
tion of  parents  for  their  children,  will  prevent  any  abuse  from  the 
unlimited  power  which  is  given  of  disposing  of  property  by  will. 
And,  therefore,  there  is  no  doubt  that  the  testator  may  devise 
all  his  estate  to  strangers  and  disinherit  his  children,  if  he  pleases. 
But  the  circumstance  that  the  parent,  without  cause,  has  disinher- 
ited his  child,  or  that  any  other  testator  has  bequeathed  his  estate 
in  a  manner  contrary  to  his  moral  duties  and  natural  affections,  will 
always  have  great  influence  in  establishing  the  fact  of  insanity. 
On  the  other  hand,  the  inference  to  be  derived  from  this  circum- 
stance, adverse  to  the  testator's  sanity,  may  be  repelled  by  show- 
ing a  satisfactory  reason  for  the  testamentary  disposition. 

The  subject  of  moral  insanity  is  properly  referable  to  this 
branch  of  our  discussion.  The  attention  of  the  medical  profession 
was  first  directed  to  this  form  of  malady  by  Pinel,  about  the  com- 
mencement of  this  century.  The  disorder  is  defined  by  some  of 
the  writers  as  "  consisting  in  a  morbid  perversion  of  the  natural 
feelings,  affections,  inclinations,  temper,  habits,  and  moral  disposi- 
tions, without  any  notable  lesion  of  the  intellect,  or  knowing  and 
reasoning  faculties,  and  particularly  without  any  maniacal  halluci- 
nation." {Guy's  Forensic  Med.  306.  Dean's  Med.  Juris.  496.) 
The  subject  Avas  much  discussed  in  Frere  v.  Peacoke,  (3  Hagg. 
527,  547.)  And  it  was  held  that  moral  insanity  or  the  perversion 
of  the  moral  feelings  not  accompanied  with  insane  delusion,  which 
is  the  legal  test  of  insanity,  is  not  sufficient  to  invalidate  a  will. 

It  is  principally  in  criminal  cases  that  the  question  as  to  the 
existence  of  this  form  of  insanity  arises.  The  consideration  of  this 
class  of  cases  does  not  fall  within  the  scope  of  the  present  work, 
and  the  cases  are  no  further  important,  than  as  they  afford  illus- 
trations of  the  general  subject  of  mental  disease.  The  subject  was 
much  considered  in  this  state,  in  Freeman  v.  The  People, 
(4  Denio,  9,)  and  on  the  subsequent  trial  of  the  said  Freeman  in 
the  Cayuga  0.  and  T.  in  July,  1846.  (#ee  Report  by  U.  F.  Unit, 
Esq.)     The  question,  in  4  JJeiuu,  aiudo  on  the  charge  to  the  jury, 


84  TESTAMENTARY  CAPACITY— OLD  AGE. 

on  the  preliminary  trial,  -whether  the  accused  was  sufficiently  sane 
to  be  required  to  plead.  The  jury  under  the  instruction  of  the 
court  havino-  found  that  the  prisoner  was  sufficiently  sane  in  mind 
and  memory  to  distinguish  between  right  and  wrong,  and  the  court 
having  accepted  the  verdict  and  proceeded  to  try  the  prisoner,  and 
refused  to  charge  the  jury  to  find  whether  the  prisoner  was  sane 
or  insane,  the  question  amongst  others,  was  brought  before  the 
supreme  court,  by  writ  of  error.  The  decision  of  the  supreme 
court  is  no  further  important  in  this  connection,  than  as  it  gees  to  . 
show  that  the  courts  recognize  a  state  of  partial  insanity.  Partial 
insanity,  says  the  judge,  {p.  29,)  is  not  by  law  necessarily  an  ex- 
cuse for  crime,  and  can  only  be  so  when  it  deprives  the  party  of 
his  reason  in  regard  to  the  act  charged  to  be  criminal. 

There  does  not  appear  to  be  any  reason  for  recognizing  moral  in- 
sanity as  a  distinct  disease.  It  may  perhaps,  without  impropriety, 
be  treated  by  Avriters  on  medical  jurisprudence,  as  a  distinct  disease, 
or  as  one  of  the  forms  of  mental  alienation.  For  all  legal  pur- 
poses, it  is  enough  that  the  law  recognizes  a  general  and  a  partial 
insanity.  If  the  act  done  is  proved  to  be  referable  to  the  influ- 
ence of  either,  it  is  sufficient  to  invalidate  it,  whether  it  be  a  will 
or  a  contract. 

The  statute  requires  that  the  surrogate,  before  recording  any 
will,  or  admitting  it  to  probate,  should  be  satisfied  of  its  genu- 
ineness and  validity.  (2  R.  #.-61,  §  26,  as  amended  by  the  act 
of  1837,  ch.  460,  §  17.  3  R.  S.  149,  §  66,  5th  ed.)  In  addition 
to  the  classes  already  considered,  of  idiots  and  lunatics,  there 
are  cases  of  mental  imbecility  arising  from  other  causes,  and 
which  may  exist  to  such  a  degree  as  to  constitute  a  state  of  un- 
soundness of  mind,  within  the  meaning  of  the  law,  and  to  dis- 
qualify the  party  for  making  a  valid  testamentary  disposition  of 
his  property.  The  persons  falling  under  this  head,  and  whose 
cases  most  frequently  are  brought  to  the  notice  of  the  surrogate, 
are  those  who  have  become  disqualified  by  the  infirmities  of  old  age, 
or  who  have  made  a  wreck  of  their  intellect,  by  drunkenness. 

But  old  age  does  not,  per  se,  work  a  disqualification.  There  is 
no  period  fixed  by  law,  beyond  which  a  man  shall  be  conclusively 
adjudged  to  be  incapable  of  making  a  testament.  In  this  respect, 
governments  have  not  guarded  the  second  childhood  of  our  race, 


TESTAMENTARY  CAPACITY— OLD  AGE.  85 

with  the  same  legislative  care  that  they  have  protected  the 
heedlessness  and  inexperience  of  youth.  They  have  wisely  trust- 
ed each  case  to  the  evidence  and  sound  judgment  of  the  courts. 

This  subject  has  often  been  brought  to  the  test  of  examination 
in  our  highest  tribunals.  The  case  of  Van  Alst  v.  Hunter, 
(5  John.  Ch.  148,)  is  a  leading  case.  The  testator  was  between 
90  and  100  years  old,  and  infirm,  at  the  time  he  made  his  will,  in 
which  he  gave  the  bulk  of  his  property  to  his  only  surviving 
daughter  and  a  grandson.  A  bill  was  filed  by  the  other  heirs  at 
law  to  set  aside  the  will  on  account  of  the  incompetency  of  the 
testator,  who,  it  was  alleged,  was  of  unsound  mind  and  memory  at 
the  time,  and  under  improper  restraint.  A  feigned  issue  was 
awarded  by  the  chancellor,  and  the  jury  found  in  favor  of  the  will. 
The  cause  came  before  the  chancellor  on  a  motion  for  a  second 
trial,  and  on  the  equity  reversed.  After  disposing  of  other  mat- 
ters, the  chancellor  (Kent)  observed,  that  it  is  well  understood, 
that  age  alone  will  not  disqualify  a  person  from  making  a  will,  pro- 
vided the  testator  has  a  competent  possession  of  his  mental  fac- 
ulties. Quoting  from  Swinburne,  part  2,  §  5,  he  says,  "  a  man  may 
freely  make  his  testament  how  old  soever  he  may  be,  for  it  is  not 
the  integrity  of  the  body  but  of  the  mind  that  is  required  in  tes- 
taments." This  has  been  the  doctrine  of  the  law  in  every  age. 
And  after  quoting,  to  the  same  effect,  from  the  Roman  law,  he 
adds,  "  The  law  looks  only  to  the  competency  of  the  understand- 
ing ;  and  neither  age,  nor  sickness,  nor  extreme  distress  or  debil- 
ity of  body  will  affect  the  capacity  to  make  a  will,  if  sufficient  in- 
telligence remains."  After  reviewing  the  facts  of  the  case,  and 
showing  that  the  will  itself  was  replete  with  just  feeling  and 
rational  calculation,  he  adds :  "  It  is  one  of  the  painful  con- 
sequences of  extreme  old  age  that  it  ceases  to  excite  interest,  and 
is  apt  to  be  left  solitary  and  neglected.  The  control  which  the 
law  still  gives  to  a  man  over  the  disposal  of  his  property,  is  one 
of  the  most  efficient  means  which  he  has  in  protracted  life  to  com- 
mand the  attentions  due  to  his  infirmities.  The  will  of  such  an 
aged  man,  ought  to  be  regarded  with  great  tenderness,  when  it 
appears  not  to  have  been  procured  by  fraudulent  acts,  but  con- 
tains those  very  dispositions  which  the  circumstances  of  his  situ- 
ation and  the  course  of  the  natural  affections,  dictated." 


86  TESTAMENTARY  CAPACITY— OLD  AGE. 

This  subject  has  often  been  fully  considered  in  the  surrogate's 
court  of  New  York,  and  the  student  will  derive  much  instruc- 
tion from  the  perusal  of  the  sagacious  observations  of  the  learned 
surrogate,  whose  decisions  have  been  reported.  We  have  not 
room  for  any  extended  quotations  from  them.  Thus  in  Weir  v. 
Fitzgerald,  (2  Bradf.  R.  42,)  the  will  of  a  testator  76  years 
of  age,  whose  hearing  was  slightly  affected,  and  sight  very  seriously 
impaired,  was  admitted  to  probate.  It  was,  in  that  case,  very 
properly  held,  that  besides  the  mere  formal  proof  of  execution, 
something  more  is  necessary  to  establish  the  validity  of  a  will 
when,  from  the  infirmities  of  the  testator,  his  impaired  capacity, 
or  the  circumstances  attending  the  transaction,  the  usual  infer- 
ence cannot  be  drawn  from  the  formal  execution.  Additional 
evidence  is  required  that  his  mind  accompanied  the  will,  and  that 
he  was  cognizant  of  its  provisions.  This  may  be  established  by 
the  subscribing  witnesses,  or  by  evidence  aliunde. 

So,  also,  in  Laycroft  v.  iSimmo?is,  (3  Bradf.  Sur.  Rep.  35,) 
where  the  testator  was  eighty-nine  years  old,  though  of  undoubted 
capacity,  yet  because  the  will  was  made  at  the  house  of  a  son,  who 
took  under  the  will  the  largest  share  of  the  estate,  and  who  drew 
the  will  for  his  father  without  the  knowledge  of  the  other  heirs,  it 
was  held  that  further  proof  of  a  recognition  of  the  will  should  be 
required,  than  the  bare  fact  of  execution  ;  and  such  proof  having 
been  given,  the  will  was  admitted  to  probate. 

So,  also,  in  Creely  v.  Ostrander,  (3  Bradf.  Sur.  Rep.  107,)  the 
testator  was  in  his  eighty-fourth  year,  and  enfeebled  by  disease. 
In  short  he  died  the  same  day  the  will  was  executed,  and  only  a 
few  hours  after  ;  but  his  faculties  were  unimpaired,  and  proof  was 
required  and  given  showing  that  the  testator  executed  the  will,  and 
exhibited  mental  activity,  freedom  and  determination  of  volition. 

There  are  cases  of  imbecility  of  mind,  not  arising  from  old  age, 
or  drunkenness,  which  often  present  embarrassing  questions  on  the 
subject  of  testamentary  capacity.  Tlie  doctrine  of  the  courts  in 
regard  to  this  matter  was  most  thoroughly  discussed  in  the  court 
of  errors  in  this  state,  in  1841,  in  the  well  known  case  of  Stewarts 
Ex'rs  v.  Lispenard,  (26  Wend.  255.)  The  result  of  that  case  is, 
that  in  the  case  of  the  will  of  a  person  of  imbecile  mind,  a  want  of 
consent  l>v  the  testator  to  a  particular  will  may  be  urged,  from  his 


TESTAMENTARY  CAPACITY— IMBECILITY.  87 

inability  to  comprehend  its  effect  and  nature,  from  the  dispositions 
of  the  property  being  contrary  to  what  naturally  might  have  been 
expected  from  the  relative  situation  of  the  parties,  the  preferences, 
partialities,  and  former  testamentary  declarations  of  the  testator  ; 
the  absence,  at  the  making  of  the  will,  of  those  to  whom  he  com- 
monly looked  for  advice;  and  generally  from  the  surrounding  cir- 
cumstances, into  which  the  court  of  probate  will  look  with  vigilance. 
So,  on  the  contrary,  evidence  of  the  general  knowledge  and  under- 
standing of  the  testator  that  he  is  the  owner  of  property,  and  'has 
the  power  of  disposing  of  it  by  will,  of  his  previous  declarations 
and  intent  as  to  its  disposition,  of  his  gratitude  and  attachment  to 
the  donee  for  long  and  persevering  care  and  kindness  ;  and  the  will 
itself  being  in  a  simple  form,  intelligible  to  the  plainest  mind,  will 
be  sufficient  to  justify  the  court  to  pronounce  it  a  genuine  and 
valid  instrument. 

The  case  also  is  a  leading  authority  for  the  position,  that  mere 
imbecility  of  mind  in  a  testator  will  not  avoid  his  last  will  and  tes- 
tament. Idiots,  lunatics  and  persons  non  compos  mentis  are  disa- 
bled from  disposing  of  their  property  by  will,  but  every  person  not 
embraced  within  either  of  the  above  classes,  of  lawful  age  and  not 
under  coverture,  is  competent  to  make  a  will,  be  his  understand- 
ing ever  so  weak.  Courts,  in  passing  upon  the  validity  of  a  will, 
do  not  measure  the  extent  of  the  understanding  of  the  testator  ;  if 
he  be  not  totally  deprived  of  reason,  whether  he  be  wise  or  unwise, 
he  is  the  lawful  disposer  of  his  property,  and  his  will  stands  as  a 
reason  for  his  actions.  (To  the  same  effect  see  Blanchard  v. 
Nestle,  3  Denio,  37  ;  Scribner  v.  Crane,  2  Paige,  147  ;  Clark  v. 
Sawyer,  2  Comst.  499.) 

But  while  the  law,  in  tenderness  to  human  infirmity,  allows  the 
weak  as  well  as  the  strong  the  right  of  disposing  of  his  property 
by  will,  it  is  careful  that  he  should  be  able  to  do  more  than  to 
answer  familiar  and  usual  questions,  and  that  he  should  have  a 
disposing  memory,  so  as  to  be  able  to  make  a  disposition  of  his 
property  with  understanding  and  reason  ;  and  that  is  such  a  mem- 
ory as  the  law  calls  sane  and  perfect  memory.  (Marquis  of 
Winchelsea's  case,  1  Co.  23  a.  Clark  v.  Fisher,  1  Paige,  173. 
Ingraham  v.  Wyatt,  1  Hagg.  401.  Bolton  v.  Barry,  1  Curt. 
EccL  Rep.  614.) 


88  TESTAMENTARY  CAPACITY— DRUNKENNESS. 

The  remaining  class  under  this  head  is  that  of  the  drunkard. 
He  that  is  overcome  by  drink,  says  Swinburne,  (pt.  2,  §  6,)  during 
the  time  of  his  drunkenness  is  compared  to  a  madman,  and  there- 
fore if  he  make  his  testament  at  that  time,  it  is  void  in  law,  which 
is  to  be  understood,  when  he  is  so  excessively  drunk  that  he  is 
utterly  deprived  of  the  use  of  reason  and  understanding  ;  otherwise, 
albeit  his  understanding  is  obscured,  and  his  memory  troubled,  yet 
he  may  make  his  testament  being  in  that  case. 

In  some  of  the  cases  which  have  been  cited,  the  understanding 
of  the  party  was  destroyed  by  reason  of  habitual  intoxication. 
Such  a  party  can  no  more  make  a  valid  will  than  if  the  intellect 
had  been  impaired  by  a  direct  visitation  from  God.  The  remarks 
of  Harrington,  J.,  in  Duffield  v.  Robison,  (2  Harrington,  375, 
383,  384,)  are  very  appropriate  to  this  subject,  as  well  as  just  in 
themselves.  "  Drunkenness,"  says  the  learned  judge,  "  is  itself  a 
species  of  insanity,  and  might  invalidate  a  will  made  during  the 
drunken  fit ;  but  long  continued  habits  of  intemperance  may  grad- 
ually impair  the  mind,  and  destroy  the  memory  and  other  faculties, 
so  as  to  produce  insanity  of  another  kind." 

In  the  case  of  Ayrey  and  others  v.  Hill,  in  the  prerogative 
court  of  Canterbury,  a  distinction  was  pointed  out  between  a  lucid 
interval  succeeding  a  case  of  proper  insanity,  and  the  state  of  a 
person,  habitually  addicted  to  intemperance,  after  the  excitement 
has  passed  away.  Where  actual,  proper  insanity  is  proved  to  have 
shown  itself,  either  perfect  recovery,  or  at  least  a  lucid  interval,  at 
the  time  of  making  the  instrument,  must  be  shown,  to  entitle  any 
testamentary  instrument  to  be  pronounced  for  as  a  valid  will. 
Either  of  these,  however,  the  last  especially,  is  highly  difficult  of 
proof,  for  the  following  reasons.  Insanity  will  often  continue, 
though  latent,  so  that  a  person  may  be  in  effect,  completely  mad 
or  insane,  however,  on  some  subjects,  and  in  some  parts  of  his  con- 
duct apparently  rational.  But  the  effects  of  drunkenness  or 
ebriety  only  subsists  while  the  cause,  the  excitement  visibly  lasts  ; 
there  can  scarcely  be  such  a  thing  as  latent  ebriety.  Therefore, 
in  the  latter  case,  proof  of  the  absence  of  the  excitement,  at  the 
time  of  the  act  done,  or  at  least  the  absence  of  it  in  such  degree 
as  to  prevent  intoxication,  is  enough  to  show  the  act  itself  valid. 

In  this  state  the  chancellor  formerly  had  the  care  and  custody 


TESTAMENTARY  CAPACITY— DURESS.  89 

of  all  idiots,  lunatics,  persons  of  unsound  mind,  and  persons  inca- 
pable of  conducting  their  own  affairs,  in  consequence  of  habitual 
drunkenness,  and  of  their  real  and  personal  estate,  so  that  the 
same  should  not  be  wasted  or  destroyed.  (2  R.  S.  52.)  This 
duty,  under  the  constitution  of  1846,  and  the  judiciary  act,  is  now 
principally  devolved  upon  the  supreme  court.  While  a  party  is 
.under  a  commission  granted  by  the  court,  on  the  return  of  a  proper 
inquisition,  he  is,  prima  facie,  incapable  of  transacting  business  or 
of  doing  any  act  which  will  bind  his  estate.  In  like  manner  con- 
tracts made  by  him  before  the  finding  of  the  inquisition,  which  are 
overreached  by  the  retrospective  finding  of  the  jury,  are  presump- 
tively void.  {UAmoreux  v.  Crosby,  2  Paige,  422.)  The  same 
effect  is  given  to  a  commission  against  a  person  as  an  habitual 
drunkard.  He  cannot  even  in  his  sober  moments,  while  the  com- 
mission is  in  force,  make  contracts  which  will  bind  himself  or  his 
property.     (  Walsvwrth  v.  Sharpsteen,  4  Seld.  388.) 

In  Stone  v.  Damont,  (12  Mass.  R.  488,)  it  was  held  by  the 
supreme  court  of  Massachusetts,  that  a  lunatic  under  guardianship 
might  make  a  will,  if  he  was  restored  to  his  reason,  although  the 
letters  of  guardianship  were  unrepealed.  In  this  state  the  prac- 
tice seems  to  have  been  to  suspend  the  commission  in  part,  so  as 
to  authorize  the  lunatic  to  dispose  of  his  property  by  will,  upon 
evidence  that  he  has  so  far  recovered  as  to  have  a  testamentary 
capacity.     {Matter  of  Burr,  2  Barb.  Ch.  R.  208.) 

Section  II. 
Of  persons  incapable  by  restraint. 

The  revised  statutes  require  that  the  surrogate,  before  directing 
a  will  to  be  recorded,  as  a  will  of  real  estate,  or  admitting  it  to 
probate,  if  it  relates  only  to  personal  property,  shall  find  that  the 
testator,  at  the  time  of  making  the  will,  was  in  all  respects  com- 
petent, and  not  under  restraint.  (2  R.  S.  58,  as  amended  by 
the  act  of  1837,  ch.  460,  §  18  ;  3  R.  8. 139, 150,  5th  cd.)  Under 
this  head  may  be  embraced  all  cases  in  which  a  will  has  been  ob- 
tained, by  fear,  fraud,  importunity,  undue  influence,  or  by  a  female 
under  coverture. 

A  will  executed  under  duress  is  void.  (Jackson  v.  Kniffin, 
12 


90  TESTAMENTARY  CAPACITY— DURESS— FEAR— FRAUD. 

2  John.  31.)  A  contract  entered  into  by  a  party,  by  duress  of 
imprisonment  or  duress  per  minas,  is  void.  To  constitute  duress 
per  mi?ias,  it  is  not  essential  that  the  party  be  threatened  "with 
loss  of  life  or  limb  ;  or  with  mayhem  ;  but  it  is  enough  if  he  acts 
from  fears  excited  by  threats  of  illegal  imprisonment.  (Foshay 
v.  Ferguson,  5  Hill,  154.)  The  will  of  a  person  under  restraint, 
either  actual  or  by  construction  of  law,  is  invalid.  If  it  can  be 
demonstrated  that  actual  fear  was  used  to  compel  the  testator  to 
make  the  will,  there  can  be  no  doubt  that  although  all  formalities 
have  been  complied  with,  and  the  party  perfectly  in  his  senses, 
yet  such  a  will  cannot  stand.  {Mountain  v.  Bennett,  1  Cox,  355.) 
The  old  writers  say,  if  there  be  at  the  time  of  bequeathing,  a  fear 
upon  the  testator,  it  could  not  be,  as  it  ought  to  be  libera  voluntas. 
Yet  it  must  be  understood  that  it  is  not  every  fear  or  a  vain  fear 
that  will  have  the  effect  of  annulling  the  will;  but  a  just  fear, 
that  is,  such  as  that  indeed,  without  it  the  testator  had  not  made 
his  testament  at  all,  or  at  least  in  that  manner.  A  vain  fear  is 
not  enough ;  but  it  must  be  such  a  fear  as  the  law  intends  when 
it  expresses  it  by  a  fear  that  may  cadere  in  constantem  virum  ; 
as  the  fear  of  death,  or  of  bodily  hurt,  or  of  imprisonment,  or  of 
loss  of  all  or  most  part  of  his  goods,  or  the  like,  ( Godol.  pt.  3,  ch. 
25,  §  8 ;  Swinb.  pt.  7,  §  2,  pi.  7,)  whereof  no  certain  rule  can  be 
delivered,  but  it  is  left  to  the  discretion  of  the  judge,  who  ought 
not  only  to  consider  the  quality  of  the  threatenings,  but  also  the 
persons,  as  well  threatening  as  threatened ;  in  the  person  threat- 
ened, the  sex,  age,  courage,  pusillanimity,  and  the  like.  {Id.)  But 
if  the  testator,  afterwards,  when  there  is  no  cause  of  fear,  ratifies 
and  confirms  the  testament,  it  seems  to  be  good  in  law.  {Id.  pi.  8.) 
In  like  manner  a  will  obtained  by  fraud  is  void,  as  much  so,  in- 
deed, as  if  it  was  the  result  of  fear.  {Id.)  Any  undue  advantage 
taken  of  the  testator  by  which  he  is  induced  to  make  a  will  which 
he  otherwise  would  not  have  made,  vitiates  the  will.  The  proper 
remedy  in  such  a  case  is  to  contest  the  will  before  the  surrogate, 
when  it  is  offered  for  probate,  or  to  be  proved  as  a  will  of  real 
estate.  It  may  also  be  contested  in  a  court  of  law,  in  an  action  by 
the  devisee  of  the  real  estate  against  the  heirs  or  parties  claiming 
under  them.  In  Bennet  v.  Wade,  (2  Atk.  324,)  Lord  Hardwicke 
said  that  it  was  settled  and  had  been  since  the  time  of  Lord  Mac- 


TESTAMENTARY  CAPACITY— IMPORTUNITY.  91 

clesfield,  that  a /will  cannot  be  set  aside  in  equity  for  fraud  or  im- 
position ;  for  the  reason  that  if  it  be  a  will  of  personal  estate,  tho 
remedy  is  in  the  ecclesiastical  courts,  and  a  will  of  real  estate  may 
be  set  aside  at  law.  In  this  state,  however,  Chancellor  Walworth, 
in  Clarke  v.  Sawyer,  (2  Barb.  Ch.  411,)  asserted  the  power  of 
the  court,  by  the  consent  of  parties,  to  make  a  decree  declaring  the 
will  void  for  fraud ;  and  he  accordingly  made  such  decree  in  that 
case,  which  was  affirmed  on  appeal,  by  the  court  of  appeals.  (S.  C. 
2  Comst.  498.) 

The  cases  of  importunity  generally  occur  in  the  testator's  last 
sickness,  when  he  is  in  extremis,  and  in  favor  of  some  relative 
near  his  person.  In  one  case,  a  will  was  said  to  be  obtained  by 
constraint,  because  the  testator  made  his  will  in  his  sickness  by 
the  over  importunity  of  his  wife.  (Harker  v.  Newborn,  Styles, 
427.)  According  to  Sir  John  Nicholl,  (see  Kindleside  v.  Harri- 
son, 2  Phillini.  551,  2,)  importunity  in  its  correct  legal  acceptation, 
must  be  in  such  degree,  as  to  take  away  from  the  testator  free 
agency  ;  it  must  be  such  importunity  as  he  is  too  weak  to  resist ; 
such  as  will  render  the  act  no  longer  the  act  of  the  deceased ;  not 
the  free  act  of  a  capable  testator ;  in  order  to  invalidate  the  will. 

In  Blanchard  v.  Nestle,  (3  Denio,  43.)  the  supreme  court  of  this 
state  held  that  a  person  had  a  right  by  fair  argument  or  persuasion 
to  induce  another  to  make  a  will,  and  even  to  make  it  in  his  own 
favor.  The  procuring  a  will  to  be  made  by  such  means  is  nothing 
against  its  validity.  In  that  case  the  alleged  importunity  was  by 
the  daughter  upon  her  father.  The  court  cite  with  approbation 
the  case  of  Miller  v.  Miller,  (3  Serg.  ij*  Raiole,  267,)  in  which 
the  court  say  that  any  one  has  a  right  by  fair  argument  and  per- 
suasion, or  by  virtuous  influence,  to  induce  another  to  make  a  will 
in  his  favor.     (And  see  also  id.  270.) 

There  is  a  difference  between  control  and  undue  influence;  the 
first  approaches  near  to  duress  or  fear ;  the  last  is  more  difficult 
to  be  described.  If  a  wife  by  her  virtues  has  gained  such  ascend- 
anc3r  over  her  husband,  that  her  pleasure  is  the  law  of  his  conduct, 
such  influence  is  no  reason  for  impeaching  a  will  made  in  her  favor, 
even  to  the  exclusion  of  the  residue  of  his  family.  Nor  would  it 
be  safe  to  set  aside  a  will  on  the  ground  of  influence,  inipurtunity 


92         TESTAMENTARY  CAPACITY— UNDUE  INFLUENCE. 

or  undue  advantage,  taken  over  his  mind  and  conduct  in  the  gen- 
oral  concerns  of  life,  unless  there  should  be  proof  that  such  influ- 
ence was  specially  exerted  to  procure  a  will  peculiarly  acceptable 
to  her  and  prejudicial  to  others.     (Small  v.  Small,  4  Greenl.  220.) 

Very  closely  connected  with  importunity  are  the  cases  of  undue 
influence.  This  arises  where  a  dominion  has  been  acquired  by  a 
person  over  another's  mind  of  sufficient  sanity  for  general  purposes, 
and  of  sufficient  soundness  and  discretion  to  regulate  his  affairs  in 
general ;  yet  if  the  influence  should  be  such  as  to  prevent  the  ex- 
ercise of  such  discretion,  it  is  equally  incompatible  with  a  dispos- 
ing mind.  {Mountain  v.  Bennett,  1  Cox,  355.)  But  the  influence 
must  be  such  as  amounts  to  force  and  destroys  free  agency.  It  is 
not  enough  that  it  is  the  influence  of  affection  and  attachment.  It 
must  not  be  the  mere  desire  of  gratifying  the  wishes  of  another. 
To  vitiate  the  act,  the  influence  must  be  shown  to  have  arisen  from 
threats,  force  or  coercion,  destroying  free  agency,  and  the  boon  to 
have  been  obtained  by  such  coercion,  or  by  importunity  that  could 
not  be  resisted,  producing  compliance  for  the  sake  of  peace. 
( Gardner  v.  Gardner,  22  Wend,  526.  Williams  v.  Goude, 
1  Hagg.  581.     Allen  v.  The  Public  Administrator,  1  Brad.  378.) 

A  married  woman  was  not  permitted,  by  the  New  York  revised 
statutes,  to  make  either  a  will  of  real  or  personal  property.  (2  R.  IS. 
56,  §  1,  p.  60,  §  21.)  In  this  respect  they  differed  widely  from  the 
civil  law,  in  which  there  was  no  distinction,  a  married  woman  being 
as  capable  of  bequeathing  as  a  feme  sole.  But  anterior  to  the 
revised  statutes  it  was  well  settled  that  a  married  woman  might 
make  a  will  of  her  separate  personal  property,  which  would  be  valid 
in  equity ;  and  it  was  not  necessary  that  the  marriage  articles,  or 
the  conveyance  by  or  through  which  she  acquired  the  property,  or 
by  which  it  was  settled  to  her  own  use,  should  express  that  she 
should  have  power  to  dispose  of  it  by  will :  when  it  was  established 
that  it  was  her  sole  property  which  she  had  a  right  to  hold  free 
from  the  control  or  intermeddling  of  her  husband,  she  was  regarded 
by  the  court  of  chancery  as  a  feme  sole  in  respect  to  such  property, 
and  could  dispose  of  it  by  will,  or  by  a  conveyance  inter  vivos,  in 
the  same  manner  which  any  other  proprietor  of  such  property  could 
do.  In  the  absence  of  any  restriction  in  the  marriage  articles,  she 
was  free  to  adopt   any  method  of  disposing  of  it,  which  the  law 


TESTAMENTARY  CAPACITY— MARRIED  WOMEN.  93 

gave  to  other  absolute  owners,  except  that  she  was  disabled  from 
making  a  valid  covenant  or  agreement  as  to  title.  (  Wadham  v. 
Amer.  Home  Miss.  Society,  2  Kernan,  418,  per  Denio,  J. ;  S.  C. 
10  Barb.  597.  Peacock  v.  Monk,  2  Ves.  sen.  190, 191.  -per  Lord 
Hardwicke.  Fettiplace  v.  Gorges,  1  Ves.  jun.  46.  Wagstaff 
v.  Smith,  9  id.  500.  1  Sugd.  on  Powers,  210,  211.  Jaqnes  v. 
Methodist  E.  Church,  17  John.  548.) 

Separate  personal  property  of  the  wife  was  unknown  to  the  com- 
mon law,  which  considered  the  husband  to  be  the  owner  of  all  the 
goods  of  the  wife.  (  Willard's  Eq.  Juris.  634  et  seq.  Clancy's 
Rights  of  Women,  p.  1,  2 ;  per  Denio  in  Wadhams  v.  Am.  Home 
M.  Soc.  sujrra.)  It  was  for  this  reason  that  the  law  respecting 
settlements  to  her  sole  and  separate  use,  and  as  to  titles  arising 
out  of  that  doctrine,  was  available  only  in  the  court  of  chancery. 
As  all  the  personal  estate  in  possession  of  a  woman  vested  abso- 
lutely in  her  husband  at  the  moment  of  marriage,  and  all  which 
she  acquired  during  coverture,  immediately  became  his,  the  only 
subject  upon  which  a  will  of  personal  property,  executed  by  her, 
could  operate,  would  be  such  as  had  been  conveyed,  or  settled  to 
her  separate  use,  and  perhaps  her  contingent  interest  in  her  choses 
in  action  not  reduced  to  possession,  and  her  chattels  real.  [Id. 
per  Denio,  J.) 

As  the  husband  might  waive  the  interest  which  the  law  bestowed 
upon  him,  he  might  of  course  empower  the  wife  to  make  a  will  to 
dispose  of  her  personal  estate.  His  assent  to  his  wife's  will  en- 
titled the  wife's  executor  to  claim  such  articles  of  her  personal 
estate,  which  would  have  been  her  husband's,  as  administrator. 

Prior  to  the  revised  statutes  there  was  no  legislative  provision 
respecting  wills  of  personalty  by  married  women.  The  legislature 
had  re-enacted  the  material  parts  of  the  English  statute  of  wills, 
(34  and  35  Henry  8,  ch.  5,)  and  which,  as  revised  in  1830,  in 
effect  made  all  wills  of  real  estate  of  a  married  woman  invalid. 
(2  R.  S.  56,  §  1.)  With  respect  to  personal  property,  the  revised 
statutes  introduced  a  new  provision,  by  which  a  married  woman 
could  not  give  or  bequeath  her  personal  estate  by  will.  (2  R.  S. 
60,  §  21.) 

Experience  soon  showed  that  this  restriction  was  neither  dictated 
by  wisdom  or  suiind  policy.     It  led  to  the  adoption  of  the  act  of 


94  TESTAMENTARY  CAPACITY— MARRIED  WOMEN. 

1848,  ch.  200,  and  the  amended  act  of  1849,  ch.  375,  (3  R.  S.  239, 
240,  5th  ed.)  By  the  first  of  those  statutes  it  was  enacted  that 
the  real  and  personal  property  of  any  female,  who  might  thereafter 
marry  and  which  she  should  own  at  the  time  of  the  marriage,  and 
the  rents  issues  and  profits  thereof,  should  not  be  subject  to  the 
disposal  of  her  husband,  nor  be  liable  for  his  debts,  and  should 
continue  her  sole  and  separate  property  as  if  she  were  a  single 
woman.  The  second  section  enacted  that  the  real  and  personal 
property,  and  the  rents,  issues  and  profits  thereof,  of  any  female 
then  married,  should  not  be  subject  to  the  disposal  of  the  husband  ; 
but  should  be  her  sole  and  separate  property  as  if  she  were  a  single 
woman,  except  so  far  as  the  same  might  be  liable  for  the  debts  of 
her  husband  theretofore  contracted.  Though  this  statute  broke 
into  the  common  law  rule,  and  was  a  proceeding  in  the  right  di- 
rection to  ameliorate  the  social  condition  of  married  women,  it  did 
not  go  far  enough  to  effect  its  object.  It  did  not  confer  upon 
married  women  whom  it  recognized  as  the  owners  of  their  prop- 
erty, the  power  of  devising  the  same  by  will.  It  did  not  remove  the 
restriction  which  coverture  at  common  law  and  under  the  revised 
statutes,  had  interposed  in  this  respect.  But  the  second  of  these 
statutes,  that  of  1849,  went  further.  It  enacted  that  any  married 
female  might  take  by  inheritance,  or  by  gift,  grant,  devise  or  be- 
quest, from  any  person  other  than  her  husband,  and  hold  to  her 
sole  and  separate  use,  and  convey  and  devise,  real  and  personal 
property,  and  any  interest  or  estate  therein,  and  the  rents,  issues 
and  profits  thereof,  in  the  same  manner,  and  with  the  like  effect 
as  if  she  were  unmarried,  and  that  the  same  should  not  be  subject 
to  the  disposal  of  her  husband  nor  be  liable  for  his  debts.  This  stat- 
ute has  been  held  to  be  prospective,  and,  so  far  as  it  may  be  sup- 
posed to  affect  rights  already  vested  in  the  husband  by  the  mar- 
riage, to  be  unconstitutional  and  void.  {Holmes  v.  Holmes,  4  Barb. 
295.  White  v.  White,  5  id.  474.  Snyder  v.  Snyder,  3  id.  621. 
Perkins  v.  Cottrel,  15  id.  446.  Westervelt  v.  Gregg,  2  Ker- 
nan,  202.) 

There  are  but  few  reported  cases  arising  under  the  statute  of 

1849.  which  concern  the  office  of  the  surrogate.  As  married 
women  arc  by  the  act,  competent  to  devise  or  bequeath  real  and 
personal  property  in  the  same  manner  and  Avith  the  like  effect  na 


DISQUALIFICATION  FROM  CRIMES.  95 

if  they  were  unmarried,  it  is  the  duty  of  the  surrogate,  on  proof 
of  the  due  execution,  to  admit  the  will  to  probate,  leaving  the 
question  as  to  what  passes  under  it,  for  future  construction.  The 
power  to  make  a  will  relates  to  the  personal  capacity  and  the  pro- 
bate ;  the  right  to  dispose  of  certain  property  relates  to  the  effect 
of  the  instrument  when  proved,  and  its  construction.  (  Water  v. 
Citllen,  2  Bradf.  Sur.  R.  354.     Van  Wert  v.  Benedict,  1  id.  114.) 

Wills  made  under  a  power,  must  be  executed  with  the  same 
formalities  and  be  proved  in  the  same  manner  as  proper  wills. 
They  must  be  proved  before  the  surrogate ;  but  that  officer  has 
nothing  to  do,  as  a  court  of  probate,  with  the  question  whether  the 
power  was  well  executed  or  not,  or  whether  it  authorizes  the  will, 
or  in  fact  exists  at  all.  This  subject  was  fully  considered  by  the 
surrogate  of  New  York,  in  Van  Wert  v.  Benedict,  (1  Bradf.  114,) 
and  the  present  practice  of  the  English  courts  in  testamentary 
cases  approved. 

It  can  scarcely  be  necessary  to  add  that  the  rules  which  have 
already  been  considered  as  to  capacity,  are  applicable,  and  that  the 
circumstances  which  will  in  other  cases  invalidate  the  instrument, 
such  as  fear,  fraud,  undue  influence,  and  the  like,  will  have  the 
same  effect  on  the  will  of  a  married  woman,  as  upon  one  made  by 
other  parties.  If,  then,  such  will  be  made  in  favor  of  the  husband, 
as  it  may  be,  it  will  be  void,  provided  it  is  brought  about  by  the 
exercise  of  undue  influence  and  marital  authority,  contrary  to  the 
real  wishes  and  intentions  of  the  wife.  {Marsh  v.  Tyrrell,  2  Hagg. 
84.  Mynn  v.  Robinson,  id.  169.  Burdick  v.  Gibbs,  3  John. 
Ch.  R.  523.) 

Section  III. 

Of  the  -persons  disqualified  on  account  of  conviction  for  crime. 

At  common  law,  all  traitors  and  felons  were  incapable  of  mak- 
ing a  will,  from  the  time  of  their  conviction ;  for  then  their  goods 
and  chattels  were  no  longer  at  their  own  disposal,  but  forfeited  to 
the  king.  (2  Blk.  Com.  499.)  This  incapacity  was  also  extended 
to  a  felo  de  se,  and  to  outlaws,  so  long  as  the  outlawry  subsisted. 
(Id.)  It  was  even  doubted  whether  a  person  excommunicated 
could  make  a  will ;  but  that  was  removed  by  the  statute  53  Geo. 


96  CONVICTION  OF  FELONY. 

3,  ch.  127.  the  third  section  of  which  declared  that  persons  excom- 
municated should  incur  no  civil  incapacity  whatever. 

In  this  state,  the  law  is,  in  a  great  degree,  changed  in  all  the 
above  respects.  Outlawry  is  abolished  in  all  cases  except  on  a 
conviction  for  treason.  (2  R.  S.  744.)  As  we  have  no  church  es- 
tablished by  law,  so  excommunication  from  a  church  organized  by 
voluntary  association,  works  no  civil  disability. 

By  the  constitution  of  the  United  States  it  is  declared  that  no 
attainder  of  treason  shall  work  corruption  of  blood,  or  forfeiture, 
except  during  the  life  of  the  person  attainted.  {Const,  art.  3, 
§  3,  subd.  2.)  By  the  act  for  the  punishment  of  certain  crimes 
against  the  United  States,  passed  April,  20,  1790,  ch.  9,  §  24,  for- 
feiture of  estate  and  corruption  of  blood  were  wholly  abolished. 

The  constitution  of  this  state  adopted  in  1777,  prohibited  all 
acts  of  attainder  after  the  end  of  the  revolutionary  war,  and  the 
constitution  of  the  United  States  prohibits  the  several  states  from 
passing  any  bill  of  attainder.  {Const,  art.  1,  §  10.)  But  the 
constitution  and  laws  of  this  state  recognize  the  crime  of  treason 
against  this  state,  and  provide  for  its  punishment,  and  for  forfeit- 
ure as  incident  to  outlawry  on  conviction.  Such  conviction  works 
forfeiture  of  the  lands  of  the  convict  during  life,  and  of  his  goods  and 
chattels  absolutely.  But  the  same  act  abolishes  all  forfeitures  in 
the  nature  of  deodands,  and  in  cases  of  suicide,  and  when  any 
person  shall  flee  from  justice.     (2  R.  S.  701,  §  22.) 

Thus  far  we  have  considered  the  incapacity  to  make  a  will  as 
arising  from  the  forfeiture  for  crime.  It  is  supposed  that  there 
is  another  class  of  cases  where  the  incapacity  arises  from  a  differ- 
ent cause.  The  revised  statutes  define  felony  to  mean  an  offense 
for  which  the  offender,  on  conviction,  shall  be  liable  by  law  to  be 
punished  by  death,  or  by  imprisonment  in  a  state  prison,  and  no 
other.  (2  R.  S.  702,  §  30.)  They  have  substituted  for  the  com- 
mon law  consequences  of  a  conviction  for  a  felony,  certain  dis- 
qualifications. Thus  a  person  sentenced  to  imprisonment  in  a 
state  prison  for  life,  is  thereafter  to  be  deemed  civilly  dead. 
(2  R.  S.  701,  §  20.)  A  sentence  of  imprisonment  in  a  state  prison 
for  any  term  less  than  for  life,  suspends  all  the  civil  rights  of  the 
persons  so  sentenced,  and  forfeits  all  public  offices  and  all  private 


FORM,  &o.  OF  MAKING  A  WILL.  97 

trusts,  authority  or  power,  during  the  term  of  such  imprisonment. 
(Id.  §  19.)  In  O'Brien  v.  Hagcm,  the  New  York  superior  court  de- 
cided that  the  effect  of  the  above  provision  was  to  abate  any  suit 
which  might,  at  the  time  of  such  conviction,  be  pending  in  his 
favor.  They  declined,  however,  to  give  an  opinion,  whether  a 
party  in  that  condition  could  execute  a  valid  release.  It  would 
seem,  on  principle,  that  he  could  not.  (Miller  v.  Fecklc,  1  Par- 
ker's Cr.  Rep.  374,  377.)  The  right  to  make  a  will  is  doubtless 
one  of  the  civil  rights  which  is  suspended  by  sentence  of  impris- 
onment in  a  state  prison.  If  such  convict  be  at  the  time  of  such 
sentence,  an  executor,  administrator  or  guardian,  the  trust  is 
forfeited,  and  others  may  be  appointed  in  his  place. 


CHAPTER  III. 

OF    THE    FORM    AND    MANNER    OF    MAKING    A    WILL    OR   CODICIL. 

Wills  and  codicils  are  of  two  sorts,  written  and  nuncupative. 
Written  wills  are  also  of  two  sorts,  such  as  relate  to  real  property, 
called  devises,  and  such  as  relate  to  personal  property,  sometimes 
called  a  testament.  Both  of  the  latter  kind  are  with  propriety 
called  a  last  will  and  testament.  Formerly  there  was  a  striking 
difference  between  the  formalities  required  for  a  devise  of  lands 
and  those  necessary  for  a  valid  will  of  personal  property.  It  is 
probable  that  the  several  states  have  prescribed  different  formal- 
ities in  this  respect.  In  this  state,  until  the  revised  statutes  of 
1830  went  into  operation,  the  law  was  substantially  like  the  Eng- 
lish law,  at  the  time  of  the  separation  of  this  country  from  Great 
Britain.  But  by  those  statutes,  both  kinds  of  written  wills, 
whether  relating  to  real  or  personal  estate,  were  put  upon  the 
same  footing  as  to  the  formalities  of  execution  and  attestation. 
In  England,  by  the  act  1  Vict.  ch.  26,  which  took  effect  in  this 
respect  in  1838,  the  same  formalities  of  execution  and  attestation 
are  necessary,  whether  the  instrument  disposes  of  real  or  of  per- 
sonal estate.  The  provisions  of  our  statute  for  the  valid  execution 
of  a  will  or  codicil  of  real  or  personal  property,  or  both,  are  that 
it  shall  be  executed  in  the  following  manner :  1.  It  shall  be  sub- 
13 


08  FORM  OF  MAKING  A  WILL. 

scribed  by  the  testator,  at  the  end  of  the  will.  2.  Such  subscrip- 
tion shall  be  made  by  the  testator  in  the  presence  of  each  of  the 
attesting  witnesses,  or  shall  be  acknowledged  by  him  to  have  been 
so  made,  to  each  of  the  attesting  witnesses.  3.  The  testator,  at 
the  time  of  making  such  subscription,  or  at  the  time  of  acknowl- 
edging the  same,  shall  declare  the  instrument  so  subscribed,  to  be 
his  last  will  and  testament.  4.  There  shall  be  at  least  two  attest- 
ing witnesses,  each  of  whom  shall  sign  his  name  as  a  witness,  at 
the  end  of  the  will,  at  the  request  of  the  testator.  (2  Ii.  S.  63, 
§  40 ;  p.  68,  §  71,  as  to  codicil.)  The  statute  is  peremptory,  and 
nothing  can  be  more  explicit.  Four  ingredients  as  declared,  must 
enter  into,  and  together  constitute  one  entire,  complex  substance, 
essential  to  the  complete  execution,  (per  Nelson,  Ch.  J.,  in  Rein- 
sen  v.  Brinkerhoof,  26  Wend.  331.) 

It  is  proposed  to  notice  these  formalities  in  the  order  in  which 
they  are  named,  and  to  bring  to  the  notice  of  the  reader  the  adju- 
dications which  have  occurred  in  relation  to  them  respectively. 

Section  I. 

Of  the  statutory  requirements  for  the  making  and  attestation 
of  a  will  or  codicil. 

Neither  the  signature  or  seal  of  the  testator  was  necessary,  at 
common  law,  to  a  will  of  personalty,  whether  the  instrument  was 
in  the  handwriting  of  the  testator  or  in  that  of  another  man.  All 
that  was  required  was  evidence  satisfactory  to  the  court,  that  the 
instrument  propounded  as  a  will,  contained  the  final  testamentary 
disposition  of  the  testator's  personal  estate.  With  regard  to  a 
will  of  lands,  it  was  otherwise ;  the  English  statute  of  wills,  and 
that  of  this  state  previous  to  the  revised  statutes,  requiring  that 
it  should  "  be  signed  by  the  party  making  the  same,  or  by  some 
other  person  in  his  presence,  and  by  his  express  direction." 

Questions  at  an  early  day  arose  as  to  what  amounted  to  a  sign- 
ing by  the  testator.  It  was  decided  that  a  mark  was  sufficient, 
and  that  notwithstanding  the  testator  was  not  shown  to  be  unable 
to  write.  {Baker  v.  Dunning,  8  Adol.  fy  Ellis,  94.  Jackson  v. 
Van  Dusen,  5  John.  144.)  It  was  held  also,  as  well  in  the  courts 
of  England  as  here,  that  the  writing  of  the  name  of  the  testator 


FORM  OF  MAKING  A  WILL.  99 

in  the  body  of  the  will,  if  written  by  himself,  with  the  intent  of 
giving  validity  to  the  will,  was  a  sufficient  signing,  within  the 
statute.  ( Tonnele  v.  Hall,  4  Comst.  145,  per  Jewctt.  1  Jarman 
on  Wills,  Perkins'  ed.  114,  and  notes.) 

Thus,  says  Jewett,  J.,  in  the  same  case,  the  old  law  stood,  and 
the  mischief  of  it  was  that,  as  it  was  unnecessary  for  the  testator 
to  have  adopted  the  instrument  after  it  was  finished,  by  actually 
signing  the  same  at  the  close  of  the  will,  it  did  not  denote  clearly 
that  he  had  perfected  and  completed  it.  To  remedy  this  evil  and 
to  prevent  future  controversy  as  to  whether  a  will  signed  by  the 
testator,  in  any  other  part  of  the  instrument  than  at  the  end,  de- 
noted a  complete  and  perfect  instrument,  the  revised  statutes  above 
referred  to,  require  that  "it  shall  be  subscribed  by  the  testator  at 
the  end  of  the  will."  And  the  statute  of  Victoria  1,  ch.  26,  passed 
in  1837,  requires  that  "the  will  shall  be  signed  at  the  foot  or  end 
of  the  will,"  and  to  avoid  the  misconstruction  which  had  prevailed 
as  to  "  signing,"  the  words,  "  subscribed  at  the  end  of  the  will," 
are  used  in  our  statute,  and  the  words  "  signed  at  the  foot  or  end 
of  the  will,"  are  used  in  the  statute  of  Victoria. 

In  the  case  just  cited,  an  instrument  propounded  as  a  will  con- 
sisted of  eight  unfolded  sheets  or  pieces  of  paper,  securely  attached 
together  at  the  ends.  The  writing  of  the  will  commenced  on  the 
first  and  was  continued  on  the  four  succeeding  sheets,  where  it  was 
brought  to  a  close  by  the  usual  attestation  clause,  and  was  sub- 
scribed by  the  testator  and  the  witnesses.  On  one  of  the  sheets 
following  the  signature  ivas  a  map  not  signed  by  the  testator  or 
the  witnesses.  The  testator  owned  houses  and  lots  in  the  city  of 
New  York  which  he  disposed  of  to  his  widow  and  among  his  de- 
scendants. In  the  body  of  the  will  the  lots  were  designated  by 
numbers,  with  a  reference  to  the  map  as  follows  :  "  which  said  lots 
are  designated  on  a  certain  map  now  on  file  in  the  office  of  the 
register  of  the  city  and  county  of  New  York,  (a  copy  of  which,  on  a 
reduced  scale,  is  hereto  annexed.)  entitled  map  of  the  property," 
(fee.  particularly  describing  the  map  on  file.  It  was  held  by  the 
court  of  appeals  of  this  state  that  the  will  was  subscribed  by  the 
testator  at  the  end  of  the  will,  within  the  meaning  of  the  statute, 
and  that  the  execution  thereof  was  valid. 

In  this  case  the  paper  referred  to  was  treated  in  tbe  same  way 


100  SUBSCRIPTION  OF  TESTATOR. 

as  if  it  had  been  actually  inserted  in  the  body  of  the  will  at  the 
place  where  it  was  referred  to  therein.  The  subscription  of  the 
testator  and  the  attestation  of  the  witnesses,  being  at  the  close  of 
the  description  and  disposing  parts  of  the  will,  were  thought  to  be 
a  full  compliance  with  the  statute,  notwithstanding  the  schedule 
referred  to  in  the  body  of  the  will  followed  the  subscription  and 
attestation. 

We  have  seen  that,  under  the  former  statute,  the  testator  might 
execute  the  will  by  his  mark ;  the  statute  requiring  that  the  will 
should  be  signed  by  the  testator,  or  by  some  other  person  in  his 
presence  and  by  his  direction.  The  present  statute  requires  that 
the  will  shall  be  subscribed  by  the  testator  at  the  end  of  the  will ; 
thus  implying  that  the  subscription  must  be  the  personal  act  of 
the  testator.  But  it  is  obvious  that  the  legislature  did  not  intend 
to  abolish  the  former  practice  entirely,  for  in  the  41st  section 
(2  R.  S.  64)  it  is  required  that  every  witness  who  shall  sign  the 
testator's  name  to  any  will  by  his  direction,  shall  write  his  own 
name  as  a  witness  to  the  will.  (See  Chaffee  v.  Baptist  Miss.  Con. 
10  Paige,  91 ;  Butler  v.  Benson,  1  Barb.  S.  C.  R.  527  ;  Keeney 
v.  Whilmark,  16  id.  141.) 

This  necessarily  implies  that  a  party  may  make  a  will  who  can- 
not, or  who  for  some  cause  omits  to  subscribe  his  name ;  and  whose 
name  is  thus  subscribed  by  another  by  his  direction. 

The  second  requirement  is  that  such  subscription  shall  be  made 
by  the  testator  in  the  presence  of  each  of  the  attesting  witnesses, 
or  shall  be  acknowledged  by  him,  to  have  been  so  made,  to  each  of 
the  attesting  witnesses.  We  have  seen  that  putting  his  mark  to 
his  name  when  written  by  another  by  his  direction,  is  a  subscrib- 
ing within  the  meaning  of  the  statute. 

But  suppose  this  subscription  by  the  testator  was  made  by  him 
in  private,  and  not  in  the  presence  of  witnesses,  the  statute  re- 
quires that  the  fact  that  the  subscription  was  made  by  him,  must 
be  acknowledged  to  have  been  so  made  to  each  of  the  attesting 
witnesses.  This  acknowledgment  by  the  testator  is  an  independent 
requisite,  and  is  not  to  be  confounded  with  the  declaration  required 
by  the  next  subdivision,  that  the  instrument  so  subscribed  is  his 
last  will  and  testament.     {Lewis  v.  Lewis,  1  Kern.  220.)     The 


SUBSCRIPTION— ATTESTATION.  101 

acknowledgment  of  the  testator  that  the  instrument  is  his  last  will 
and  testament,  and  requesting  the  witnesses  to  attest  it  as  such,  is 
not  a  substitute  for  the  acknowledgment  of  his  subscription.  All 
the  statutory  requirements  must  be  fully  complied  with.  {Chaffee 
v.  The  Bajitist  Miss.  Conv.  10  Paige,  85.  Remsen  v.  Brink- 
erhoff,  26   Wend.  331.) 

It  has  been  shown  that  a  party,  blind  or  deaf  and  dumb,  if  in  other 
respects  qualified,  can  make  a  valid  testamentary  disposition  of  his 
property.  In  such  case,  the  request  to  another  to  write  his  name 
and  the  acknowledgment  of  his  subscription  to  each  of  the  wit- 
nesses, if  not  made  by  oral  discourse  as  it  cannot  be  in  the  case  of 
the  dumb,  must  be  in  writing,  or  by  such  signs  as  will  be  intelli- 
gible to  the  witnesses.     (Whitbeck  v.  Patterson"  10  Barb.  610.) 

It  has  been  sometimes  made  a  question  whether  the  subscription 
must  be  made  by  the  testator  in  the  presence  of  both  the  witnesses, 
or  when  not  made  in  their  presence,  must  be  acknowledged  in  the 
presence  of  both  at  the  same  time,  or  whether  it  may  be  acknowl- 
edged before  one  at  one  time,  and  another  at  a  different  time.  Mr. 
Justice  Hand,  at  special  term,  in  Butler  v.  Benson,  (1  Barb.  iS.  C  R. 
533,)  intimates  that  the  acknowledgment  may  be  made  to  the  wit- 
nesses separately,  or  that  he  may  subscribe  and  publish  in  the 
presence  of  one,  and  acknowledge  and  publish  before  another. 
But  this  point  was  not  before  the  learned  judge  in  that  case,  and 
it  is  believed  that  his  dictum,  though  entitled  to  much  respect, 
cannot  be  supported.  It  is  quite  obvious  that  the  execution  of  the 
will  by  the  testator  and  the  attestation  by  the  subscribing  wit- 
nesses are  all  concurrent  acts,  and  to  be  done  at  the  same  time. 
The  particular  order  in  which  these  requirements  are  fulfilled,  is 
not  important.  There  is  necessarily  some  interval  between  the 
different  acts,  though  all  in  contemplation  of  law  are  done  at  the 
same  time.  (Doe  v.  Roe,  2  Barb.  iS.  C.  R.  205.  Seguine  v.  Se- 
guine, Id.  394,  5,  per  Edmonds,  J.  Keency  v.  Whitmarsh,  16 
id.  141.)  The  policy  of  the  law,,  which  is  to  prevent  fraud  and  de- 
ception, would  be  defeated  by  executing  a  will  at  different  times, 
and  by  piecemeal. 

By  the  English  statute,  the  testator  is  required  to  make  his 
signature  at  the  foot  or  end  of  the  will,  or  to  acknowledge  that  he 
had  so  made  it,  in  the  presence  ef  two  or  more  witnesses,  present 


102  ATTESTATION— PUBLICATION. 

at  the  same  time.  {Section  9  of  the  act  of  1  Vict.  26.)  Under 
this  statute  it  has  been  held  that  the  act  is  not  complied  "with 
unless  both  witnesses  shall  attest,  and  subscribe  after  the  test- 
ator's signature  shall  have  been  made  or  acknowledged  to  them, 
when  both  are  actually  present  at  the  same  time.  (Cooper  v. 
Bockelt,  3  Curties,  659,  per  Sir  Henry  Frost.  1  Wms.  Ex'rs, 
75,  \th  Am.  from  the  last  Lo?id.  ed.)  This  phraseology  is  slightly 
different  from  our  statute.  It  requires,  in  express  terms,  that  both 
witnesses  must  be  present  at  the  same  time.  Our  statute  requires 
the  same  thing  by  necessary  implication,  unless  the  testator  may 
be  allowed  to  subscribe  twice.  As  he  is  to  subscribe  or  acknowl- 
edge, in  the  presence  of  each  of  the  attesting  witnesses,  they  both 
must  be  present  "at  the  time  he  subscribes  or  acknowledges. 

The  usual  mode  of  making  the  acknowledgment  is  by  a  decla- 
ration to  the  witnesses  that  the  subscription  is  his.  It  has  been 
held  that  when  the  testator  produces  the  will,  with  his  signature 
visibly  apparent  on  the  face  of  it,  to  the  witnesses,  and  requests 
them  to  subscribe  it,  this  is  a  sufficient  acknowledgment  of  his 
signature.     (Gage  v.  Gage,  3  Curties,  451.) 

The  third  requirement  is,  that  the  testator,  at  the  time  of  mak- 
ing such  subscription,  or  at  the  time  of  acknowledging  the  same, 
must  declare  the  instrument,  so  subscribed,  to  be  his  last  will  and 
testament.  Publication  was  never  required,  at  common  law,  of  a 
will  of  personal  estate ;  and  it  seems  doubtful,  Avhether  any  pub- 
lication, as  distinguished  from  attestation,  was  necessary  for  a 
will  of  lands,  under  the  statute  of  frauds.  (Doe  v.  Purdett, 
4  Adol.  $•  El.  14.)  Be  that  as  it  may,  the  present  English  stat- 
ute requires  no  other  proof  of  publication,  than  the  execution  of 
the  will  by  the  testator,  according  to  the  form  of  the  statute. 
But  our  statute  evidently  goes  further.  The  courts  have  held 
the  parties  to  a  strict  compliance  with  this  part  of  the  statute. 
Thus  in  Lewis  v.  Lewis,  (1  Kernan,  220,)  the  testator  presented 
the  instrument  to  the  witnesses  and  said,  "  I  declare  the  within  to 
be  my  free  will  and  deed."  This  was  held  not  to  be  a  sufficient 
declaration  that  the  instrument  was  his  last  will  and  testament. 
(See  nisi,  Brinckerhoof  v.  Remsen,  8  Paige,  488;  S.  C.  in  error, 
26    Wend.  325.)     This  declaration  must  be  made  in  the  presence 


ATTESTATION— REQUEST  TO  WITNESSES.  103 

of  two  witnesses.  It  is  not  sufficient  that  he  so  declares  in  presence 
of  one  witness,  and  afterwards  signs  in  the  presence  of  two  witnesses 
who  subscribe  it  as  witnesses,  at  his  request.  {Seymour  v.  Van 
Wyck,  2  Seld.  120.)  But  when  a  testator,  in  the  presence  of  the 
subscribing  witnesses,  dictated  the  provisions  of  a  testamentary 
paper,  read  it  aloud  after  it  was  drawn,  signed  it,  and  then  re- 
quested them  to  give  it  their  attestation,  it  was  held  by  the  learn- 
ed surrogate  of  New  York,  that  the  substance  of  what  the  statute 
required,  was  performed.  This,  he  thought,  was  a  sufficient  testa- 
mentary declaration.     (Carle  v.  Underkill,  3  Bradf.  Sur.  R.  101.) 

It  has  been  shown,  that  the  precise  order  in  which  the  transac- 
tions of  making  a  will  occur,  is  not  very  important.  In  one  case, 
when  the  testator  made  the  testamentary  declaration,  before  he 
actually  subscribed  the  will,  but  on  the  same  occasion,  it  was  held 
to  be  a  substantial  compliance  with  the  act.  (Rieben  v.  Hicks, 
3  Bradf.  Snr.  R.  353.)  Nor  is  the  form  of  much  importance, 
provided  the  ideas  be  properly  expressed.  When  the  testament- 
ary declaration  and  the  request  to  the  subscribing  witnesses  to 
attest  the  instrument,  were  made  by  means  of  questions  put 
by  the  counsel  attending  the  execution  of  the  will,  and  the  affirm- 
ative response  of  the  testator,  it  was  held  to  be  a  satisfactory 
compliance  with  the  statute.  (Tunison  v.  Timison,  4  Bradf. 
Sur.  R.  138.) 

So  Avhen  the  testator,  after  subscribing  his  will,  went  to  a  store 
where  were  three  persons,  whom  the  draftsman,  in  the  presence  of 
the  testator,  requested  to  sign  an  instrument  which  he  said  was 
the  testator's  last  will  and  testament.  He  then  read  the  attestation 
clause,  and  asked  the  testator  if  that  was  his  last  will  and  testa- 
ment, and  the  testator  said  it  was.  The  three  persons  then  signed 
it  as  witnesses.  The  testator  did  not  request  the  witnesses  to 
subscribe  it  as  such,  but  it  was  held  by  the  supreme  court  in  the 
7th  district,  that  the  reading  the  attestation  clause  in  the  will,  in 
the  presence  of  the  testator  as  well  as  of  the  witnesses,  followed 
by  the  affirmation  that  it  was  his  last  will  and  testament,  was  a 
complete  fulfillment  of  the  requirement  of  the  act.  (  Whitbec/c  v. 
Patterson,  10  Barb.  608.)  It  is  not  expressly  stated,  but  it 
is  fairly  to  be  inferred  that  the  attestation  clause  recited  in  the 
usual  form,  the  performance  by  the  testator  of  all  the  requirements 


104  NUMBER  OF  WITNESSES. 

of  the  statute  ;  and  that  this  was  read  in  the  hearing  of  the  testa- 
tor and  the  'witnesses. 

The  4th  and  last  requirement  under  consideration  is  that  there 
shall  be  at  least  two  attesting  witnesses,  each  of  whom  shall  sign 
his  name  as  a  witness,  at  the  end  of  the  will,  at  the  request  of  the 
testator. 

Formerly  wills  and  codicils  of  personal  property  need  not  have 
any  witnesses  of  their  publication  ;  custody  was  a  sufficient  publi- 
cation of  them.  Nor  did  the  law  require  such  a  will  to  have  sub- 
scribing witnesses  to  give  it  force  and  effect.  (Brett  v.  Brett, 
3  Add.  224.)  It  was  merely  required  by  the  English  ecclesiasti- 
cal courts,  in  a  will  not  attested  by  subscribing  witnesses,  that  an 
affidavit  should  be  made  by  two  persons  to  the  signature  of  the 
testator  to  the  will  (id.)  or  other  proof  that  it  was  the  testament 
of  the  testator.  But  if  there  was  an  attestation  clause  at  the  foot 
of  the  testamentary  paper,  the  courts  held  that  the  natural  infer- 
ence was  that  the  testator  intended  to  execute  it  in  the  presence 
of  witnesses,  and  therefore,  till  such  execution,  it  was  incomplete. 
(Scott  v.  Rhodes,  1  Phill.  19.  Watts  v.  The  Public  Adminis- 
trator, 2  Wend.  168.)  Still  the  presumption  against  the  paper, 
as  a  complete  will,  was  slight,  and  might  be  rebutted  by  slight 
circumstances.  With  respect  to  a  will  of  real  estate,  we  have  seen 
that  the  former  statute,  like  the  English  statutes  of  Henry  8,  from 
which  it  was  principally  taken,  required  that  the  instrument  should 
be  in  writing,  and  signed  by  the  party  making  it,  or  by  some  other 
person  in  his  presence,  and  by  his  express  direction ;  and  be  at- 
tested and  subscribed  in  the  presence  of  the  testator,  by  three  or 
more  credible  witnesses.     (R.  L.  o/1813,  p.  364.) 

The  revised  statutes  have  put  both  kinds  of  wills  upon  the  same 
footing  ;  and  instead  of  three  witnesses,  have  required  two  only,  and 
have  pointed  out  the  manner  in  which  they  shall  attest  the  will. 

As  a  matter  of  precaution  the  statute  requires  that  each  witness 
shonld  write  opposite  to  his  name  his  respective  place  of  residence. 
This  requirement  is  merely  directory,  and  the  omission  to  do  so, 
does  not  invalidate  the  attestation,  but  only  subjects  the  default- 
ing witness  to  a  penalty  of  fifty  dollars.     (2  R.  &.  64,  §  41.) 

A  variety  of  questions  have  already  arisen  under  this  branch  of 
the  statute,  and  it  is  probable  that  others  will  be  started  hereafter. 


SUBSCRIPTION  OF  WITNESSES.  105 

It  has  sometimes  been  made  a  question,  whether  a  person  too 
illiterate,  or  in  other  respects  unable  to  write  his  own  name,  could 
be  a  subscribing  witness  to  a  will ;  or  in  other  words,  whether  a 
subscribing  witness  could  make  his  mark  to  his  attesting  signature, 
instead  of  signing  his  name,  as  the  statute  seems  to  require.  Un- 
der the  former  law  it  was  held  in  1809,  by  the  supreme  court,  that 
the  signing  by  an  attesting  witness  by  his  mark  was  sufficient. 
{Jackson  v.  Van  Dusen,  5  John.  144.)  The  statute  under  which 
that  decision  was  made  required  the  will  "  to  be  attested  and  sub- 
scribed by  three  or  more  credible  witnesses,"  &c.  The  present 
statute  in  speaking  of  the  attestation  by  the  witnesses  says  that 
each  shall  sign  his  name  as  a  witness.  It  had  long  been  held  that 
though  the  testator  was  required  to  sign  the  will,  the  making  of 
his  mark  was  a  sufficient  signing.  There  is  a  strong  implication  i(n 
the  language  of  the  41st  section  that  the  signing  mentioned  in  the 
4th  subdivision  of  §  40,  may  be  by  making  his  mark,  except  in  the 
single  case  where  the  subscribing  witness  is  the  one  who  by  the 
direction  of  the  testator  signed  the  name  of  the  testator  to  the  will. 
In  this  latter  case  the  41st  section  (2  R.  S.  64)  requires  that 
such  witness  shall  write  his  own  name  as  a  witness  to  the  will. 
If  he  was  able  to  write  the  testator's  name  to  the  will,  he  was 
certainly  able  to  write  his  own,  and  it  was  not  unreasonable 
that  he  should  be  required  to  do  it.  The  statute,  however,  does 
not  render  the  attestation  of  the  will  invalid,  if  the  witness  fails 
to  comply  with  this  provision  ;  but  merely  inflicts  upon  the  wit- 
ness a  penalty  for  his  disobedience  of  the  statutory  requirement. 
In  Campbell  v.  Logan,  (2  Bradf.  R.  90,  97,)  the  surrogate  ex- 
pressed some  doubts  on  this  question,  but  at  the  same  time,  held 
a  will  to  be  well  attested,  when  one  of  thewitnseses  signed  his  own 
name  and  held  and  guided  the  hand  of  the  second  witness,  while 
the  name  of  the  latter  was  signed.  The  surrogate  thought  that 
here  was  a  physical  participation  of  the  witness  in  the  act  of  sign- 
ing his  name,  which  amounted  to  a  compliance  with  the  require- 
ment of  the  statute.  The  difference  between  such  a  signing,  and 
making  a  mark  to  the  name  already  written  by  another,  is  not  a 
difference  in  principle,  but  in  the  degree  of  participation  of  the 
witness  in  the  act  of  signing.  If  the  first  mode  was  valid,  as  it 
doubtless  was,  the  second  could  not  be  invalid. 
14 


100  SUBSCRIBING  WITNESSES. 

The  former  statute  required  the  signing  by  the  attesting  wit- 
nesses to  be  in  the  presence  of  the  testator.  This  provision  is 
omitted  in  the  revised  statutes,  and  does  not  seem  any  longer  to  be 
necessary.  But  Hand,  J.;  in  Butler  v.  Benson,  (1  Barb.  S.  C.  R. 
580,)  inclined  to  think  such  signing  in  presence  of  the  testator 
was  still  required.  The  object  of  the  rule  was  to  prevent  impo- 
sition by  changing  the  paper ;  and  there  is  still  another  object, 
under  the  present  law,  to  enable  the  testator  to  see  or  know  that 
the  witnesses  of  his  own  selection,  fulfill  the  duty  which  he  soli- 
cited them  to  perform.  But  the  better  opinion  seems  to  be,  that 
the  legislature  by  dropping  that  requirement,  purposely  intended 
to  dispense  with  it,  in  the  execution  of  wills.  (Ruddon  v.  McDon- 
ald, 1  Bradf.  Sur.  R.  352.  4  Kent's  Com.  515.  Lyon  v.  Smith, 
11  Barb.  124.)  It  is,  at  common  law,  required  of  a  subscribing 
witness  that  he  should  attest  the  instrument  which  he  is  called  to 
see  executed,  at  the  time  it  was  executed.  The  execution  by  the 
parties  and  the  subscribing  by  the  witness,  are  considered  as 
parts  of  the  same  transaction.  Although  the  witness  was  present 
and  saw  an  instrument  executed,  if  he  did  not  subscribe  it  at  that 
time,  but  did  afterwards,  without  the  request  of  the  parties,  he  is 
not  a  good  attesting  witness.  (Hollenbeck  v.  Fleming,  6  Hill, 
305.  Henry  v.  Bishop,  2  Wend.  575.  Lyon  v.  Smith,  supra.) 
But  the  common  law  does  not  require  the  witness  to  subscribe  in 
the  actual  presence  of  the  parties  who  have  executed  the  instru- 
ment, and  as  the  statute  has  dispensed  with  it  in  the  case  of  wills, 
by  being  silent  on  the  subject,  it  is  no  longer,  in  this  state,  an 
indispensable  requirement.  It  is,  however,  still  retained,  in  the 
1st  Victoria,  ch.  26,  §  9,  notwithstanding  the  omission  of  it  was 
recommended  by  the  real  property  commissioners. 

It  seems  unnecessary  to  notice  the  cases  under  the  former  law. 
As  nearly  thirty  years  have  elapsed  since  the  rule  was  changed,  it 
is  not  probable  that  any  event  will  arise  calling  for  the  application 
of  the  old  cases  on  this  subject.  The  doctrine  of  real  and  con- 
structive presence,  which  often  created  doubtful  questions,  is  no 
longer  of  any  practical  consequence. 

The  statute  requires  that  the  subscribing  witnesses  should  be- 
come such  at  the  request  of  the  testator.     Various  questions  have 


REQUEST  OF  TESTATOR  TO  WITNESSES.  107 

arisen  under  this  branch  of  the  statute.  In  Rutherford  v.  Ruth- 
erford, ejectment  was  brought  by  the  plaintiff  as  heir,  against  the 
defendant,  claiming  as  devisee  under  the  will  of  the  ancestor  of  the 
parties.  The  question  was  as  to  the  valid  execution  of  the  will 
of  the  ancestor,  for  if  that  was  established  the  plaintiff  could  not 
recover  as  heir.  The  case  turned  upon  the  question  whether  both 
the  witnesses  signed  at  the  request  of  the  testator.  With  respect 
to  one  of  them  the  evidence  of  such  request  was  positive  and  un- 
equivocal. With  respect  to  the  other,  a  request  was  sought  to  be 
inferred,  from  the  fact  that  the  testator  desired  the  witness  to  be 
sent  for  to  attest  the  execution  of  his  will,  and  from  a  request  to 
such  witness  by  another  person,  in  the  testator's  presence ;  it  was 
held  by  the  supreme  court,  that  the  question  whether  the  requisite 
request  was  made  ought  to  be  submitted  to  the  jury  ;  and  because 
the  circuit  judge  inferred  such  request  and  nonsuited  the  plaintiff, 
the  supreme  court  set  aside  the  nonsuit  with  a  view  of  submitting 
the  question  to  the  jury,  who  they  admit  might  draw  that  infer- 
ence. The  case  is  an  authority  to  prove  that  the  request  of  the 
testator  may  be  inferred  from  the  circumstances  of  the  case,  but 
that  the  drawing  of  that  inference,  when  the  question  arises  in  an 
action  at  law,  by  a  party  claiming  as  heir,  in  hostility  to  the  will, 
must  be  drawn  by  the  jury,  and  not  by  the  court. 

The  statute  is  silent  as  to  the  time  when  the  testator  must 
request  the  witnesses  to  attest  the  execution  of  the  will.  Whether 
this  request  may  be  before  he  has  himself  subscribed  the  will,  or 
not  till  he  publishes  it  to  be  his  last  will  and  testament,  is  not 
specifically  declared  in  the  statute.  It  was  very  properly  held  by 
Edmonds,  justice,  in  Seguine  v.  Seguijie,  already  cited  for  another 
purpose,  that  this  request  may  be  made  by  the  testator  previous 
to  his  own  subscription,  provided  it  be  in  the  same  interview  at 
which  the  will  is  signed  and  published  by  the  testator,  and  as  a 
part  of  the  res  gestcc  ;  one  act  immediately  following  the  other 
without  any  interval,  and  without  any  interruption  to  the  continu- 
ous chain  of  the  transaction.     (2  Barb.  >S.  C.  R,  386.) 

The  request  of  the  testator  to  the  witnesses  cannot  always  be 
proved  by  direct  evidence.  The  witnesses  may,  perhaps,  forget 
the  actual  terms  which  were  used,  and  the  statute  does  not  insist 


108  ATTESTATION  CLAUSE. 

on  any  particular  form  of  making  this  request.  We  have  seen  that 
it  may  be  inferred  by  a  jury,  in  a  proper  case ;  and  it  also,  doubt- 
less, may  be  inferred  by  the  surrogate,  on  the  application  for 
probate.  If  the  attestation  clause  is  drawn  in  the  usual  form,  it 
will  state  that  all  the  requisite  formalities  were  complied  with, 
mentioning  them,  and  among  others,  that  the  witnesses  subscribed 
their  names  as  such  at  the  request  of  the  testator.  If,  after  the 
execution  of  the  will  by  the  testator,  this  clause,  before  it  is  sub- 
scribed by  the  witnesses,  be  read  distinctly  aloud  in  the  presence 
and  hearing  of  the  testator  and  the  witnesses,  their  signature  to  it 
affords  some  evidence  that  all  the  requirements  of  the  statute  were 
complied  with.  In  case  of  their  death,  the  proof  of  their  signatures 
will  be  sufficient  evidence  that  the  will  was  executed  in  due  form. 
The  fact  that  the  attestation  was  so  read  and  understood  by  the 
testator  at  the  time,  is  sufficient  presumptive  proof  not  only  of  pub- 
lication, but  also  that  the  witnesses  signed  at  his  request.  {See 
Brinckerhoofv.  Remsen,  8  Paige,  489,  and  the  cases  before  cited. 
S.  C.  in  error,  26  Wend.  325.  Hutchins  v.  Cochrane,  2  Bradf. 
Sur.  Rep.  295.  Doe  v.  Roe,  2  Barb.  S.  C.  Rep.  200.  Rieben 
v.  Hicks,  3  Bradf.  iSur.  Rep.  353.  Seguine  v.  Seguine,  2  Barb. 
S.  C.  R.  385.) 

Nor  will  the  fact  that  either  or  both  of  the  witnesses,  in  such  a 
case,  have  forgotten  the  fact  of  such  request  from  the  testator,  be 
sufficient  to  invalidate  the  will.  Their  failure  to  recollect  the  par- 
ticular occurrences,  at  the  execution  of  the  will,  to  the  existence  of 
which  they  have  certified,  is  quite  a  different  thing  from  their 
remembering  that  no  request  or  publication  was  made.  The  form- 
alities stated  in  the  attestation  clause  may  be  disproved  by  the 
witnesses  themselves,  and  this  will  repel  the  presumption  of  a  valid 
execution  of  the  instrument.  {Chaffee  v.  Baptist  Miss.  Conv.  10 
Paige,  85.)  But  if  not  disproved,  even  if  the  subscribing  wit- 
nesses have  lost  all  recollection  of  the  transaction,  the  court,  if 
satisfied  from  other  evidence  that  they  did  in  fact  witness  the  will, 
may  admit  it  to  probate.  {Peebles  v.  Case,  2  Bradf.  Sur.  Rep. 
226,  and  preceding  cases.) 

An  attestation  clause,  showing  upon  its  face  that  all  the  forms 
required  by  the  statute  have  been  complied  with  is  not  absolutely 
necessary  to  the  validity  of  a  will,  under  our  statute.     {Chaffee  v. 


ATTESTATION  CLAUSE.  109 

Baptist  Miss.  Conv.,  supra.)  And  the  late  English  statute  ex- 
pressly provides  "  that  no  form  of  attestation  shall  be  necessary." 
The  subscribing  witnesses  are  permitted  to  prove  that  all  the  forms 
were  in  fact  complied  with,  although  the  attestation  clause  is  silent 
on  the  subject.     (Id.) 

It  is,  however,  a  matter  of  wise  and  prudent  precaution,  that 
a  proper  attestation  clause,  showing  all  the  statute  formalities, 
should  be  signed  by  the  witnesses.  In  addition  to  the  presump- 
tive evidence  it  affords  in  case  of  the  death  of  the  witnesses,  or 
their  failure  of  memory,  it  shows  that  the  person  who  prepared  the 
will  knew  what  formalities  were  required  for  a  valid  execution  of 
the  will,  and  tends  to  raise  the  presumption  that  he  gave  to  the 
testator  the  necessary  information  in  relation  thereto.  (Id.)  The 
propriety  of  reading  over  the  whole  attestation  clause,  at  the  time 
of  the  execution  of  the  will,  in  the  hearing  of  the  witnesses  and  of 
the  testator,  will  occur  to  every  one,  and  has  already  been  adverted 
to.  The  indispensable  necessity  of  this,  as  well  as  reading  the 
whole  will,  in  the  case  of  a  blind  or  illiterate  person,  has  already  been 
stated,  and  will  be  referred  to  again  under  the  head  of  evidence  in 
testamentary"  cases. 

The  most  liberal  presumptions  in  favor  of  the  due  execution  of 
wills,  are  sanctioned  by  courts  of  justice,  when  from  lapse  of  time 
or  otherwise  it  might  be  impossible  to  give  any  positive  evidence 
on  the  subject.  Accordingly,  a  will  may.be  sustained,  even  in  op- 
position to  the  positive  testimony  of  one  or  more  of  the  subscribing 
witnesses,  who,  either  mistakingly  or  corruptly  swear  that  the 
formalities  required  by  the  statute  were  not  complied  with,  if  from 
other  testimony  in  the  case,  the  court  or  jury  is  satisfied  that  the 
contrary  was  the  fact.  And  when  any  of  the  witnesses  are  dead, 
or  in  such  a  situation  that  their  testimony  cannot  be  obtained, 
proof  of  their  signatures  is  received,  as  secondary  evidence  of  the 
facts  to  which  they  had  attested,  by  subscribing  the  will  as  wit- 
nesses to  the  execution  thereof.  (Jauncey  v.  Thome,  2  Barb.  Ch. 
41.     Nelson  v.  McGiffert,  3  id.  158.) 

It  has  been  decided  in  the  English  ecclesiastical  courts,  that  it 
was  not  necessary  for  the  validity  of  a  testamentary  instrument, 
that  the  testator  should  intend  to  perforin,  or  be  aware  that  he  had 


110  SUBSCRIBING  WITNESS  BEING  EXECUTOR,  &o. 

performed  a  testamentary  act.  It  was  supposed  to  be  enough  that 
the  paper  contained  a  disposition  of  the  property  to  be  made  after 
death,  though  not  intended  to  be  a  will,  but  an  instrument  of  a 
different  shape.  (Bartholomew  v.  Henley,  3  Phill.  317.)  The 
provisions  of  the  act  we  have  been  considering,  are  calculated  to 
o-uard  against  the  establishment  of  a  paper  as  a  will  which  the 
testator  did  not  mean  should  have  that  character.  To  make  a  valid 
will  there  must,  in  all  cases,  be  the  animus  testandi ;  an  intention, 
not  only  that  the  instrument  should  operate,  but  that  it  should 
operate  as  a  will ;  and  this  whether  the  subject  relates  to  real  or 
personal  estate. 

In  concluding  this  branch  of  the  subject,  it  seems  expedient  to 
notice  the  effect  of  a  subscribing  witness  being  named  as  executor 
in  the  will,  or  of  his  being  a  legatee  or  creditor  of  the  testator. 
The  New  York  code  of  procedure  does  not  extend  to  surrogates' 
courts,  and  therefore  leaves  all  questions  of  evidence  to  be  decided 
by  the  principles  of  the  common  law,  so  far  as  they  are  not  altered 
by  the  revised  statutes.  Those  statutes  provide,  that  if  any  per- 
son shall  be  a  subscribing  witness  to  the  execution  of  any  will, 
wherein  any  beneficial  devise,  legacy,  interest  or  appointment  of 
any  real  or  personal  estate,  shall  be  made  to  such  witness,  and  such 
will  cannot  be  proved  without  the  testimony  of  such  witness,  the 
said  devise,  legacy,  interest  or  appointment  shall  be  void  so  far 
only  as  concerns  such  witness,  or  any  claiming  under  him ;  and 
such  person  shall  be  a  competent  witness,  and  compellable  to  tes- 
tify respecting  the  execution  of  the  said  will,  in  like  manner  as  if 
no  such  devise  or  bequest  had  been  made.  (2  R.  S.  65,  §  50.)  The 
next  section  saves  to  the  witness  so  much  of  the  share  of  the  testa- 
tor's estate  as  would  have  descended  to  him,  in  case  the  will  was 
not  established,  as  will  not  exceed  the  value  of  the  devise  or  be- 
quest made  to  him  in  the  will,  and  allows  him  to  recover  it  of  the 
devisees  or  legatees  named  in  the  will,  in  proportion  to  and  out  of 
the  parts  devised  to  them. 

If  by  any  will,  any  real  estate  be  charged  with  any  debt,  and 
the  creditor  whose  debt  is  so  charged  shall  attest  the  execution 
thereof,  such  creditor,  notwithstanding  such  charge,  shall  be  admit- 


SUBSCRIBING  WITNESS  BEING  EXECUTOR,  &o.  HI 

ted  as  a  competent  -witness  to  prove  the  execution  of  such  will. 
(2  R.  S.  57,  §  G.) 

But  whether,  if  a  party  named  as  executor,  -without  any  legacy 
or  other  trust  vested  in  him,  should  be  a  subscribing  witness  to  the 
will,  at  the  request  of  the  testator,  that  circumstance  would  render 
him  incompetent  as  a  witness,  is  not  provided  for  in  the  statute. 
A  mere  executorship  does  not  seem  to  be  a  beneficial  appointment, 
and  therefore  his  office  is  not  invalidated  by  his  being  a  subscribing 
witness.  In  Burritt  v.  Sittiman,  (16  Barb.  198.)  the  executor  was 
not  a,  subscribing  witness  to  the  will, but  was  offered  as  a  witness  to 
establish  the  will  after  the  subscribing  witnesses  had  been  exam- 
ined. The  large  bulk  of  the  property  of  the  testator  was  bequeathed 
to  the  executors,  of  whom  there  were  three.  The  one  offered  as 
a  witness  being  objected  to,  on  the  ground  both  of  his  being  execu- 
tor and  a  trustee  under  the  will,  thereupon  he  renounced  his  ap- 
pointment as  executor,  and  also  as  trustee  under  the  will.  But 
the  objection  being  continued,  he  was  rejected  by  the  surrogate  as 
incompetent,  on  the  ground  that  before  letters  testamentary  were 
granted,  he  had  a  right  to  recall  his  renunciation.  On  appeal  to 
the  supreme  court  in  the  third  district,  the  decree  of  the  surrogate 
was  affirmed.  The  learned  judge  who  delivered  the  opinion  of  the 
court  held  that  a  person  named  as  executor  in  a  will  is  not,  at 
common  law,  a  competent  witness  to  sustain  the  will  when  offered 
for  probate,  but  a  renuneiation  of  the  executorship  would  restore 
the  competency  of  the  executor.  But  the  court  thought  the  renun- 
ciation as  executor  did  not  remove  the  interest  created  by  the 
appointment  of  the  executors  as  trustees,  and  on  that  ground  sus- 
tained the  decision  of  the  surrogate.  The  intimation  that  an  exec- 
utor, at  common  law,  was  not  a  competent  witness,  was  not  material 
to  be  decided  in  that  Case,  and  was  clearly  an  obiter  dictum.  The 
case  went  to  the  court  of  appeals,  (3  Kern.  93,)  where  the  judgment 
of  the  supreme  court  and  that  of  the  surrogate  were  reversed.  The 
court  of  appeals  admitted  that  a  person  named  as  an  executor  in  a 
will  was  a  competent  witness  to  sustain  its  probate  after  he  had 
renounced  the  executorship.  Whether  he  was  competent  without 
such  renunciation  was  not  a  question  in  the  case,  nor  passed  upon 
by  the  appellate  court.  The  reversal  was  upon  another  ground,  not 
material  to  the  present  discussion.     This  case  cannot  be  considered 


112  FORM  AND  LANGUAGE  OF  WILL. 

as  an  authority  to  support  the  dictum  of  the  court  below,  thst  an 
executor  is  an  incompetent  witness  at  common  law,  to  support  the 
probate. 

The  very  question  we  are  considering  arose  at  a  later  day,  in 
the  supreme  court  in  the  second  district.  In  that  case,  one  of 
the  persons  named  as  executor  in  the  will  had  been  admitted  as  a 
witness  to  prove  its  execution,  by  the  surrogate  of  Kings  county, 
against  the  objection  of  the  contesting  parties.  From  the  decree 
of  the  surrogate  admitting  the  will  to  probate,  an  appeal  was 
taken  to  the  supreme  court,  and  the  decision  of  the  surrogate  was 
affirmed.  This  case  conclusively  settles  the  question  in  favor  of 
the  competency  of  the  executor  to  be  a  subscribing  witness,  when 
he  takes  no  other  interest  under  the  will* 

Section  II. 

Of  the  form,  and  language  of  a  will,  and  the  materials  of 
which  it  is  composed,  and  of  the  person  by  whom  it  may  be 
written. 

There  is  no  particular  form  of  words  necessary  to  make  either 
a  will  of  real  or  personal  estate.  With  regard  to  the  latter,  a 
great  degree  of  looseness  formerly  prevailed,  but  as  the  revised 
statutes  have  placed  both  upon  the  same  footing,  and  have  now 
been  in  force  nearly  thirty  years,  it  seems  inexpedient  to  notice, 
more  at  length,  the  former  practice. 

It  is  said  to  be  essentially  requisite  that  the  instrument  should 
be  made  to  depend  upon  the  event  of  death  as  necessary  to  con- 
summate it ;  for  when  the  paper  directs  a  benefit  to  be  conferred 
inter  vivos,  without  reference,  expressly  or  impliedly,  to  the  death 
of  the  party  conferring  it,  it  cannot  be  established  as  testamentary. 
(Glynn  v.  Oglander,  2  Hagg.  428.) 

In  a  will  of  real  estate,  the  word  "  heirs"  was  not  necessary  to 
pass  an  estate  in  fee.  (Cruise's  Dig.  title  38,  ch.  11,  §§  3,  4.) 
The  intention  of  the  testator,  to  be  gathered  from  the  whole  will, 
is  to  govern.  (Jackson  v.  Babcock,  12  John.  389.)  The  word 
<:  estate"  passes  a  fee.     (Jackson  v.  Merrill,  6  John.  185.     Same 

*  This  question  was  decided  by  me  in  the  same  way,  twenty-five  years  ago, 
while  I  was  surrogate  of  Washington  county. 


ON  WHAT  TO  BE  WRITTEN".  113 

v.  Delaney,  13  id.  537.)  It  is  unnecessary  to  collect  the  cases 
on  this  point,  since  the  revised  statutes  have  adopted  the  principles 
on  which  they  were  decided,  and  declared  that  any  devise  of  real 
estate,  or  any  interest  therein,  shall  pass  all  the  estate  or  interest 
of  the  testator,  unless  the  intent  to  pass  a  less  estate  should  appear 
by  express  terms,  or  be  necessarily  implied.  (1  R.  S.  748,  §  1.) 
And  if  the  will  by  any  terms,  denotes  the  testator's  intent  to  de- 
vise all  his  real  property,  it  shall  be  construed  to  pass  all  the 
real  estate  which  the  testator  was  entitled  to  devise  at  the  time  of 
his  death.  (2  R.  S.  67,  §  5.)  Thus,  it  places  a  will  of  real 
estate,  in  this  respect,  on  the  footing  of  a  will  of  personal  prop- 
erty, contrary  to  the  former  practice,  which  did  not  permit  a 
devise  to  pass  any  lands  but  such  as  the  testator  possessed  at  the 
time  the  will  was  made,  and  of  which  he  continued  possessed  till 
the  time  of  his  death. 

A  will  is  usually  written  on  paper  or  parchment,  and  with  pen 
and  ink.  In  the  English  ecclesiastical  courts,  wills  of  personal 
property  written  with  a  pencil  have  been  admitted  to  probate. 
{Rymer  v.  Clarskson,  1  Phill.  35.  Green  v.  Skvpworth,  Id.  53. 
Dickenson "v.  Dickenson,  2  id.  173.)  It  is  laid  down  in  Williams' 
Executors,  91,  a  work  of  high  authority,  that  this  is  still  law,  but 
he  refers  to  no  case  since  the  statute  of  1  Vict.  ch.  26.  The 
question  does  not  seem  to  have  been  decided,  in  our  courts,  since 
the  revised  statutes.  Wills  of  real  and  personal  property  are 
both  placed  on  the  same  footing,  and  are  required  to  be  in  writing 
and  to  be  subscribed  by  the  testator  at  the  end  thereof,  and  to  be 
attested  by  at  least  two  witnesses  who  are  to  sign  their  names  at 
the  end  of  the  will  as  such  witnesses.  There  is  a  strong  implica- 
tion, from  the  language  of  the  statute,  that  the  will  should  be 
written  with  pen  and  ink.  It  is  certainly  the  most  prudent  to  do 
so.  The  decision  of  the  court  of  errors,  in  Davis  v.  Shields, 
(26  Wend.  341,)  which  arose  under  similar  language,  in  the 
statute  of  frauds,  to  that  in  the  act  concerning  wills,  affords  a 
strong  argument  in  favor  of  the  doctrine,  that  a  testamentary 
instrument  must  be  written  on  paper  or  parchment,  with  pen 
and  ink. 

It  is  immaterial  in  what  language  the  will  is  written,  whether 
15 


114  OF  WILLS  WRITTEN  BY  LEGATEE. 

in  Latin,  French  or  any  other  language.  (Stvinb.  pt.  4,  ch.  25, 
pi.  31.)  If  written  in  a  foreign  language,  probate  is  granted  of  a 
translation,  as  will  be  more  fully  seen  hereafter. 

The  question  has  often  arisen  in  our  courts,  whether  a  will  writ- 
ten by  a  legatee,  or  by  his  procurement,  was  a  valid  instrument. 
By  the  civil  law  such  instrument  was  void.  But  this  rule  has  not 
been  adopted  to  its  full  extent,  in  England  and  this  country.  The 
subject  was  examined  much  at  large  by  Baron  Parke,  in  the  judi- 
cial committee  of  the  privy  council,  in  1837,  and  the  result  of  it 
was  that  the  onus  probandi  in  every  case  lies  upon  the  party  pro- 
pounding a  will  for  probate ;  and  second,  that  when  the  party  who 
prepares  a  will,  takes  a  benefit  under  it,  it  is  a  circumstance  which 
excites  the  suspicion  of  the  court,  and  unless  that  suspicion  be 
removed,  the  court  will  not  pronounce  in  favor  of  the  instrument. 
{Barry  v.  Butlbi,  1  Curteis,  637.)  If  the  court  becomes  satisfied, 
from  the  evidence  and  surrounding  circumstances,  that  the  paper 
contains  the  will  of  the  deceased,  it  will  pronounce  for  it,  though, 
as  in  that  case,  it  was  prepared  by  the  deceased's  solicitor,  under 
which  he  took  a  considerable  benefit,  the  only  son  of  the  testator 
being  excluded,  and  the  deceased  being  of  weak,  though  of  testa- 
ble capacity.     (Id.) 

This  question  has  frequently  arisen  in  our  courts,  and  has  been 
decided  the  same  way.  In  Crispell  v.  Dubois,  (4  Barb.  393,)  the 
subject  was  carefully  examined  by  Harris,  justice.  The  result 
was  that  on  a  feigned  issue  to  try  the  validity  of  a  will  containing 
<t  devise  in  favor  of  his  medical  attendant  and  confidential  adviser, 
and  drawn  by  the  devisee  himself,  more  was  required  than  bare 
proof  that  the  testator  was  of  sound  mind,  and  of  the  execution 
of  the  will  according  to  the  formalities  required  by  law.  Some 
affirmative  evidence,  it  was  said,  must  be  given,  to  show  that  the 
testator  knew  the  contents  of  the  will,  and  that  it  expressed  his 
real  intentions.  In  this  class  of  cases  it  would  be  more  satisfac- 
tory to  have  direct  proof  that  the  testator  gave  instructions  for 
drawing  the  will,  or  that  it  was  read  over  by  or  to  him ;  yet  such 
evidence  is  not  indispensable.  Proof  that  the  will  was  the  spon- 
taneous intention  of  the  testator,  may  be  made  out  in  any  legiti- 
mate mode  in  which  his  real  intention  can  be  ascertained.     (Id.) 


NUNCUPATIVE  WILLS.  115 

In  Blanchard  v.  Nestle,  the  testatrix  wrote  a  part  of  the  will  con- 
taining a  legacy  in  her  own  favor,  but  it  was  shown  that  she  only 
obeyed,  with  reluctance,  the  command,  or  complied  with  the  urgent 
request  of  her  father,  and  the  will  was  upheld.  (3  Denio,  43.) 
The  same  doctrine  has  been  repeatedly  held  by  the  surrogate  of 
New  York.  (*SYee  Leaycraft  v.  Simmons,  3  Bradf.  Sur.  35 ; 
Wilson  v.  Moran,  id.  72.  See  remarks  of  Chancellor  Kent,  in 
Prince  v.  Hazleton,  20  John.  509,  516.) 

Section  III. 
Of  nuncupative  wills  and  codicils. 

The  subject  of  nuncupative  wills  was  briefly  noticed  in  chapter 
first,  ante,  page  64.  A  few  remarks  will  be  added  to  what  is  there 
said  on  the  subject. 

The  former  statute  of  this  state  enacted  that  no  nuncupative 
will  should  be  good  Avhen  the  estate  thereby  bequeathed  exceeded 
seventy-five  dollars  in  value,  unless  the  same  be  proved  by  the 
oaths  of  three  witnesses  at  the  least,  who  were  present  at  the  mak- 
ing thereof;  nor  unless  it  be  proved  that  the  testator  at  the  time 
of  pronouncing  it,  bid  the  persons  present,  or  some  of  them,  bear 
witness  that  such  was  his  will,  or  words  to  that  effect,  nor  unless 
such  nuncupative  will  be  made  in  the  last  sickness  of  the  deceased, 
and  in  his  dwelling  house,  or  where  he  had  been  resident  for  ten 
days  or  more  next  before  the  making  of  such  will,  except  when 
such  person  was  surprised  or  taken  sick  being  from  home,  and 
died  before  his  return  to  the  same.  That  after  six  months  from 
the  speaking  of  the  testamentary  words,  no  testimony  should  be 
received  to  prove  such  will,  except  the  said  testimony  or  the  sub- 
stance thereof  should  have  been  committed  to  writing  within  six 
days  after  the  making  of  the  said  will.  The  act  also  provided  that 
letters  testamentary  should  not  be  issued  till  after  fourteen  days 
from  the  death  of  the  testator,  nor  then  without  a  citation  to  the 
widow  or  next  of  kin.  (1  R.  L.  of  1813,  V.  307,  §§  14,  15.)  It 
was  while  those  statutory  provisions  were  in  force,  that  the  case 
of  Prince  v.  Hazleton,  (20  John.  502,)  arose.  The  construction 
put  upon  the  act  in  that  case,  limited  the  time  for  making  a  nuncu- 
pative will  to  the  period  when  the  testator  was  in  extremis,  or 


HO  NUNCUPATIVE  WILLS. 

overtaken  by  sudden  or  violent  sickness,  and  had  not  time  to  make 
a  written  will.  By  the  words  "  last  sickness,"  in  the  purview  of 
the  statute,  the  court  held  were  to  be  understood  the  last  extremity. 
That  will  was  set  aside,  and  there  can  be  no  question  that  the 
fraudulent  attempt  on  that  occasion,  to  get  the  control  of  the  large 
estate  of  a  sick  man,  by  means  of  such  a  will,  pretendedly  made, 
led  the  legislature,  at  the  revision  in  1830,  to  repeal  the  former 
law,  and  to  substitute  the  provisions  of  the  revised  statutes  that 
no  nuncupative  or  unwritten  will,  bequeathing  personal  estate, 
should  be  valid,  unless  made  by  a  soldier  while  in  actual  military 
service,  or  by  a  mariner  while  at  sea.  (2  R.  S.  60,  §  22.)  To 
that  class  of  persons  alone  is  reserved  the  right  of  a  testamentary 
disposition  of  their  personal  property  under  the  circumstances 
mentioned  in  the  act. 

The  right  of  disposing  of  real  property  is  not  affected  by  the 
statute.  Nothing  but  personal  property  can  be  the  subject  of  a 
nuncupative  will. 

The  present  English  statute  is  similar  to  that  of  this  state  and 
limits  the  right  of  testamentary  disposition  by  a  nuncupative  will 
"  to  any  soldier  being  in  actual  military  service,  or  any  mari- 
ner or  seaman  being  at  sea."  (1  Vict.  ch.  26,  §  9.)  Under  this 
provision  the  English  courts  have  held  that  the  privilege  does  not 
extend  to  a  soldier  quartered  in  barracks,  either  at  home  or  abroad. 
(Drummond  v.  Parish,  3  Curteis,  522,  White  v.  Ripton. 
3  id.  818.) 

In  the  recent  case  of  Hubbard  v.  Hubbard,  (12  Barb.  148,)  a 
mariner  while  actually  at  sea,  and  during  his  last  illness,  and  within 
an  hour  of  his  death,  in  answer  to  the  inquiry  what  disposition  he 
wished  to  make  of  his  property  ?  replied,  "  I  want  my  wife  to  have 
all  my  personal  property ;"  such  declaration  being  made  in  the 
presence  of  four  witnesses,  and  the  testator  being  of  sound  mind 
and  memory  at  the  time,  and  under  no  restraint,  it  was  held  by  the 
supreme  court  in  the  second  district,  that  this  was  a  good  nuncu- 
pative will,  and  their  judgment,  reversing  that  of  the  special  term, 
and  affirming  that  of  the  surrogate,  who  had  admitted  the  will  to 
probate,  was  affirmed  by  the  court  of  appeals.  (5  Seld.  196.)  The 
learned  judge  of  the  supreme  court,  in  the  course  of  his  opinion, 
well  remarked,  that  the  right  of  a  soldier  in  actual  military  service 


NUNCUPATIVE  WILLS— CODICILS.  117 

or  of  a  mariner  at  sea,  to  make  an  unwritten  will,  is  not  an  unquali- 
fied right  which  may  be  exercised  under  all  circumstances.  As 
the  making  of  such  wills  can  only  be  justified  upon  the  plea  of  ne- 
cessity, so  they  will  only  be  tolerated  when  made  in  extremis. 

In  the  foregoing  case  of  Hubbard  v.  Hubbard,  a  mariner  was 
said  to  be  at  sea,  while  on  board  his  vessel,  temporarily  wind  bound 
during  his  voyage,  in  an  arm  of  the  sea,  where  the  tide  ebbs  and 
flows. 

The  revised  statutes  do  not  prescribe  any  formalities,  or  num- 
ber of  witnesses  as  essential  to  the  validity  of  a  nuncupative  will. 
The  40th  section,  already  treated  of,  obviously  relates  only  to  writ- 
ten wills,  and  cannot  be  considered  as  repealing  the  previous  22d 
section  which  allows  of  nuncupative  wills  in  the  specified  cases  of 
soldiers  in  actual  service,  and  mariners  while  at  sea.  The  two  can 
stand  together,  which  will  leave  the  mode  of  proof  of  this  kind  of 
wills  to  be  governed  by  the  common  law.  It  is  necessary  that  the 
testator  should  be  shown  to  be  of  sound  mind  and  memory,  and  that 
he  intended  at  the  time  to  make  a  testamentary  disposition  of  his 
property.  No  particular  number  of  witnesses  is  required  at  com- 
mon law,  nor  any  other  ceremonies  as  to  publication  or  attestation. 
(See  opinion  of  Marvin,  J.  in  Court  of  Appeals,  (5  Seld.  200  to 
202,  where  the  subject  is  well  considered.)  Whether  it  is  required 
for  the  validity  of  such  a  will  that  the  testator  should  be  in  ex- 
tremis when  it  was  made,  was  expressly  left  undecided  by  the 
Court  of  Appeals.     The  question  did  not  arise  in  that  case. 

It  was  remarked  by  Sir  John  Nicholl,  in  Lemann  v.  Bonsall, 
(1  Add.  389,)  that  independent  of  the  statute  of  frauds,  the  fac- 
tum of  a  nuncupative  will  required  to  be  proved  by  evidence  more 
strict  and  stringent  than  that  of  a  written  one  in  every  single 
particular,  in  consequence  of  the  facilities  with  which  frauds  in 
setting  up  such  wills  are  obviously  attended. 

With  respect  to  codicils,  it  is  only  necessary  to  add,  that  the 
term  "  will,"  as  used  in  the  statute,  includes  codicils  as  well  as 
wills.  (2  R.  S.  68,  §  71.  Howland  v.  Union  Th.  Sem.  4  Sanf. 
S.  C.  R.  82.     Seymour  v.  Van  Wyck,  2  Seld,  120.) 


118  REVOCATION  OF  WILLS. 

CHAPTER  IV. 

OF    THE    REVOCATION    OF    WILLS. 

It  is  a  general  principle  of  law.  that  a  will  does  not  take  effect  till 
the  death  of  the  testator.  Until  the  happening  of  that  event, 
therefore,  all  its  provisions  are  in  the  breast  of  the  testator,  and 
he  may  alter  them  as  he  pleases.  It  is  not  in  the  nature  of  things 
that  a  will  should  be  irrevocable.  It  is  not  a  compact  to  which 
other  persons  are  parties,  but  a  voluntary  disposition  of  property 
which  the  testator  wishes  to  take  place  when  he  is  dead.  A  will 
is,  therefore,  correctly  said  to  be  ambulatory,  till  the  death  of  the 
testator.  {Dan  v.  Brown,  4  Cowen,  490.)  Voluntas  est  ambula- 
toria  usque  extremum  vital,  exitum.     (4  Co.  61  b.) 

The  act  of  1853,  concerning  wills,  (1  R.  L.  364.  §  3,)  prescribed 
the  means  by  which  wills  should  be  revoked  or  altered,  which  with 
slight  modifications,  have  been  adopted  by  the  revised  statutes. 
The  existing  statutes  contemplate  four  methods  of  revoking  a  will, 
all  of  which  relate,  as  well  to  a  will  of  real  as  of  personal  property. 
1st.  By  a  subsequent  will  in  writing.  2.  By  some  other  writing 
of  the  testator  declaring  such  revocation,  and  executed  with  the 
same  formalities  with  which  the  will  itself  was  required  to  be  exe- 
cuted. 3.  By  burning,  tearing,  obliterating,  canceling  or  destroy- 
ing it  with  intent  to  revoke  it.  4.  By  certain  changes  in  the  tes- 
tator's situation  in  life,  as  by  marriage.  To  which  may  be  added, 
5.  Partial  revocations  occasioned  by  ademption  of  a  legacy.  It  is 
proposed  to  treat  of  each  of  them  in  their  order. 

Section  I. 

Of  revocation  by  a  subsequent  will. 

The  operation  which  a  subsequent  will,  containing  no  express 
words  of  revocation,  has  upon  a  prior  will,  is  an  interesting  ques- 
tion ;  and  often  a  difficult  one  to  be  determined.  Whether  the  two 
shall  stand  together,  as  constituting  one  will,  or  the  last  be  deem- 
ed a  revocation  of  the  first,  depends  upon  a  variety  of  circum- 
stances, indicating  intention,  some  of  which  will  now  be  considered. 


BY  SUBSEQUENT  WILL.  119 

It  is  laid  clown  by  Swinburne,  (PL  7,  §  14,  j)l.  11,)  and  repeated 
by  most  of  the  elementary  books  on  this  subject,  that  a  man  may 
make  a  testament  as  often  as  he  pleases,  until  his  last  breath  ; 
but  no  man  can  die  with  two  testaments,  and  therefore  the  last 
and  newest  is  of  force ;  so  that  if  there  were  a  thousand  testa- 
ments, the  last  of  all  is  the  best.  But  this  must  be  understood 
with  this  qualification,  that  a  subsequent  will  does  not  work  a 
total  revocation  of  a  prior  one,  unless  the  latter  expressly  revoke 
the  former,  or  the  two  be  incapable  of  standing  together  ;  for 
though  no  man  can  "  die  with  two  testaments,"  yet  any  number  of 
instruments,  whatever  be  their  relative  dates,  if  duly  executed, 
may  be  admitted  to  probate,  as  together  containing  the  last  will 
of  the  deceased.  (Master-man  v.  Waverly,  2  Hagg.  235.  Van 
Wert  v.  Benedict,  1  Bradf.  114.  McLoskey  v.  Reid,  4  id. 
334.)  And  if  a  subsequent  testamentary  paper  be  partially  in- 
consistent with  one  of  an  earlier  date,  then  such  latter  instrument 
will  revoke  the  former  as  to  the  points  only  where  they  are  incon- 
sistent. So  a  codicil,  not  expressly  revoking  a  former  will  of  real 
estate,  though  it  professes  an  intention  to  make  a  disposition  of 
the  whole  estate  different  from  the  will,  if  it  do  not  do  so  in  fact, 
but  only  in  part,  is  not  a  revocation  pro  tanto.  (Brant  v.  Wilson, 
8  Coweji,  56.)  And  in  the  latter  case,  the  supreme  court  recog- 
nize the  rule  to  be,  that  the  contents  of  the  second  will  must  ap- 
pear to  be  inconsistent  with  the  dispositions  of  the  former  will  to 
operate  as  a  revocation,  and  that  if  part  is  inconsistent,  the  first 
will  shall  only  he  revoked  to  the  extent  of  the  discordant  disposi- 
tions. When  the  subsequent  paper  is  merely  codicillary,  there  is 
no  difficulty ;  but  when  the  subsequent  will  is  not  in  conflict,  but 
makes  a  full  disposition  of  the  estate,  whether  wholly  or  partially 
incompatible  with  a  former  will,  it  is  a  revocation  of  such  prior 
will  in  toto,  unless  it  appears  from  the  instrument  itself  that  it 
was  the  intention  of  the  testator  that  they  should  stand  together. 
The  principle  on  which  two  instruments  together  are  admitted  to 
probate,  as  containing  the  will  of  the  testator,  is  the  intention  of 
the  testator  that  they  should  so  operate ;  and  the  ecclesiastical 
courts  admitted  parol  evidence  of  the  animus  with  which  the  act 
was  done.  (Greenough  v.  Martin,  2  Add.  239.  Mithuen  v. 
Mithuen,  2  Phill.  416.     Bartholomew  v.  Henley,  3  id.  319.) 


120  BY  SUBSEQUENT  ACT. 

But  it  has  been  held  by  the  court  of  appeals  of  New  York, 
that  upon  a  question  of  revocation  of  a  will,  no  declarations  of  the 
testator  are  competent  evidence  except  those  which  accompany 
the  alleged  act  of  revocation.  (  Waterman  v.  Whitney,  1  Kern. 
157,  per  Selden  J.) 

The  general  principle,  no  doubt  is,  that  bequests  are  prima  facie, 
to  be  taken  cumulatively,  when  they  are  on  separate  papers  unless 
they  are  revocatory  of  each  other.  {Bartholomew  v.  Henley, 
3  Phill.  313.) 

In  Langdon  v.  Astor's  Ex'rs,  (2  Smith,  9.  16  N.  Y.  Reps.) 
it  was  held  by  the  New  York  court  of  appeals,  that  a  testator  in 
his  will,  cannot  reserve  a  right  to  qualify,  by  an  unattested  writing, 
a  transaction  which  at  the  time  of  such  writing,  shall  have  already 
passed  and  taken  effect,  or  which  was  the  act  of  another  person, 
so  as  by  means  thereof  to  affect  legacies  or  other  provisions  in  his 
testamentary  papers.  He  cannot  alter  his  will  otherwise  than  by 
an  instrument  attested  in  the  same  manner  as  required  to  give  it 
effect  as  a  will.  He  may,  however,  make  his  testamentary  gifts 
dependent  upon  the  happening  of  any  event  in  the  future,  whether 
in  his  lifetime  or  afterwards.  He  may,  therefore,  provide,  that 
a  legacy  shall  not  be  payable,  if  in  his  lifetime,  he  shall  give  to 
the  legatee  an  amount  equal  to  the  legacy  ;  and  he  may  add  to  the 
condition  the  further  requirement,  that  any  advancement  he  may 
make,  shall,  in  order  to  be  applied  on  account  of  the  legacies,  be 
charred  to  the  legatee  on  his  books  of  account. 

It  was  long  a  vexed  question,  whether  on  the  revocation  of  a 
later  will,  a  former  uncanceled  will  should  revive  or  not.  {Good- 
right  v.  Glazier,  4  Burr.  2512.  Harwood  v.  Goodright,  Cow. 
87,  92.  Moore  v.  Moore,  1  Phill.  406.  Onions  v.  Tyler,  1  P. 
Wms.  345.)  In  the  common  law  courts  the  presumption  was  said 
to  be  in  favor  of  the  revival  of  the  former  will,  but  in  the  ecclesi- 
astical courts,  either  an  opposite  presumption  prevailed,  or  the 
case  was  considered  open  without  prejudice  to  the  examination  of 
testimony.  In  both  courts,  parol  evidence  was  admissible  to  ascer- 
tain the  intention  of  the  testator.  The  New  York  revisers  pro- 
posed to  change  this  rule  by  adopting  the  presumption  against  a 
revival,  and  excluding  evidence  to  contradict  it.     (3  R.  S.  633, 


REVOCATION  IN  EXPRESS  TERMS.  121 

Revisers'  Notes.)  This  was  sought  to  be  done  by  the  53d  sec- 
tion, (2  R.  S.  66,)  which  enacts,  that  if,  after  the  making  of  any 
■will,  the  testator  shall  duly  make  and  execute  a  second  will,  the 
destruction,  canceling  or  revocation  of  such  second  will,  shall  not 
revive  the  first  will,  unless  it  appear  by  the  terms  of  such  revoca- 
tion, that  it  was  his  intention  to  revive  and  give  effect  to  his  first 
will ;  or,  unless  after  such  destruction,  canceling  or  revocation  he 
shall  duly  republish  his  first  will.  Under  this  statute  it  has  already 
been  shown  that  no  declarations  of  the  testator  are  competent  evi- 
dence on  the  question  of  revocation,  except  those  which  accompanied 
the  act,  and  were  a  part  of  the  res  gestce.  (  Waterman  v.  Whit- 
ney, supra.) 

The  22d  section  of  the  English  statute  (1  Vict.  ch.  26,)  contains 
a  similar  provision  to  that  of  the  53d  section  of  the  New  York  re- 
vised statutes.  Under  the  English  statute  it  has  been  held  that 
if  a  second  or  third  will  contain  a  clause,  revoking  all  former  wills, 
the  destruction  of  the  latter  will  does  not  revive  the  former,  and 
that  parol  evidence  is  inadmissible  to  show  an  intention  to  revive. 
(Major  v.  Williams,  3  Curteis,  432.)  It  is  presumed  the  same 
principle  is  applicable  to  cases  arising  under  the  New  York  stat- 
ute, although  I  am  not  aware  that  the  question  has  arisen  and 
been  decided. 

Section  II. 

Of  revocation  by  express  terms  in  a  subsequent  will,  or  other 
instrument. , 

As  to  an  express  revocation  contained  in  a  will  or  codicil,  or  some 
other  writing  of  the  testator,  it  is  provided  by  the  revised  statutes, 
(2  R.  S.  64,  §  42,)  that  such  will,  codicil  or  other  writing  declar- 
ing such  revocation  or  alteration  must  be  executed  by  the  testa- 
tor with  the  same  formalities  that  are  required  by  law  for  the  exe- 
cution of  a  will.  This  provision  was  borrowed  from  the  sixth  sec- 
tion of  the  English  statute  of  frauds,  and  departed  from  it  only,  in 
extending  to  a  will  of  personal  property,  as  well  as  to  one  of  real  prop- 
erty, to  the  latter  of  which  the  English  statute  was  confined.  The 
20th  section  of  the  late  English  statute  of  wills,  (1  Vict.  ch.  26,) 
pontains  a  similar  provision  to  that  of  the  New  York  statute. 
16 


122  REVOCATION  IN  EXPRESS  TERMS. 

The  English  statute  of  frauds  (29  Charles  2,  ch.  3,  §  6,)  enacted 
that  no  devise  in  Avriting  of  lands  &c.  shall  be  revocable,  otherwise 
than  by  some  other  will  or  codicil  in  writing,  or  other  writing-  de- 
claring the  same,  signed  by  the  testator  in  the  presence  of  three 
or  more  witnesses,  declaring  the  same.  The  law  of  this  state  con- 
cerning wills,  passed  in  1813,  §  3,  (1  R.  L.  365,)  forbid  a  will  to 
be  revoked  or  altered  otherwise  than  by  some  other  will  or  codicil 
in  writing,  or  other  writing  of  the  party  to  such  last  will  and  tes- 
tament, declaring  the  same,  and  signed,  attested  and  subscribed  in 
manner  aforesaid,  that  is  as  wills  are  required  to  be  signed  and 
attested.  The  20th  section  of  the  statute  of  Victoria,  ch.  26,  re- 
quires that  the  other  writing  declaring  the  intention  to  revoke 
the  will,  shall  be  executed  in  the  same  manner  as  wills  were  therein 
required  to  be  executed. 

The  meaning  seems  to  be  that  a  testator  may  revoke  his  will  by 
a  subsequent  will,  in  which  he  makes  a  different  disposition  of  his 
property  and  expressly  declares  such  revocation.  Or,  if  he  prefers 
to  die  intestate,  and  to  place  the  matter  beyond  all  doubt,  chooses 
to  revoke  all  former  wills  or  codicils  by  him  made,  he  may  do  so 
by  executing  an  instrument  in  writing,  declaring  such  revocation 
or  intention,  and  executing  it  with  the  same  formalities  that  are  re- 
quired by  law  for  the  execution  of  a  will.  (2  R.  S.  64,  §  42.) 
There  is  no  absurdity  in  requiring  such  instrument  to  be  executed 
as  a  will,  for  it  is  a  testamentary  writing,  or  in  calling  that  a  will 
which  declares  an  intention  to  die  intestate.  The  implication  from 
the  42d  section  is  that  a  subsequent  will  is  no  revocation  of  a  former 
one,  unless  it  contains  matter  therein  which  indicates  such  inten- 
tion. If  the  contents  of  the  last  will  cannot  be  ascertained,  it  is 
no  revocation  of  the  former  will.  {Nelson  v.  McGifert,  3  Barb. 
Ch.  R.  158.) 

As  the  republication  of  a  will  is  equivalent  to  the  making  of  a 
new  will,  such  republication  will  revoke  any  will  intermediate  to 
the  original  date  of  the  prior  will  and  of  its  republication.  (Rogers 
v.  Pittis,  1  Add.  30.)  This  subject  will  be  noticed  more  at  large 
in  a  subsequent  section.     (See  post.) 


CANCELLATION— OBLITERATION.  123 

Section  III. 

Of  revocation   by   cancellation,   burning,  tearing,   obliterating 
or  destroying  it. 

It  Avas  remarked  by  Sir  John  Nicholl,  in  Smith  v.  Cunning- 
ham, (1  Add.  455,)  that  all  questions  of  revocation,  are  questions 
of  intention  to  a  certain  degree ;  for  every  fact  of  revocation  is 
in  some  respects  equivocal.  Canceling  and  obliterating  are  justly 
considered  peculiarly  as  equivocal  acts,  which  in  order  to  operate 
as  a  revocation,  must  be  done  with  an  intention  to  revoke. 

In  Jackson  v.  Halloway,  (7  John.  394,)  the  testator  had  made 
alterations  in  his  will,  not  with  intent  to  destroy  the  devise  already 
made,  but  to  enlarge  it  by  extending  it  to  lands  subsequently  ac- 
quired. The  alterations  and  amendments  were  not  attested  accord- 
ing to  law,  and  therefore  failed  to  operate.  But  it  was  held  that  they 
did  not  destroy  the  previous  devise,  for  that  was  not  the  testator's 
intention.  The  mere  act,  say  the  court,  of  canceling,  is  nothings 
unless  it  be  done  animo  revocandi.  (See  also  Jackson  v.  Potter^ 
9  John.  312.) 

Unless  the  testator  possesses  a  testamentary  capacity,  he  can  no 
more  revoke  a  will  by  tearing  or  cancellation,  than  he  could  revoke 
it  by  a  new  will,  or  other  instrument  of  revocation.  There  must 
be  the  animus  revocandi  in  both  cases,  and  this  involves  the  idea 
of  a  sound  disposing  mind  and  memory.  A  madman  cannot  have 
this  intent.  {Smith  v.  Wait,  4  Barb.  28.  Nelson  v.  McGiffert, 
3  Barb.  Ch.  158.)  So  a  will  partially  defaced  by  a  testator,  whilst 
of  unsound  mind)  was  pronounced  for,  as  it  existed  in  its  integral 
state,  that  being  ascertainable.     (Scruby  v.  Fordham,  1  Add.  74.) 

The  presumption  of  law,  prima  facie  is,  that  obliterations  &c. 
made  after  the  execution  of  the  will,  are  done,  animo  revocandi. 
( Thyne  v.  Stanhope,  1  Add.  52.  Richards  v.  Mumford,  2  Phill. 
23,  28.)  But  this  presumption  may  be  repelled  by  evidence  show- 
ing that  the  animus  did  not  exist — as  if  a  man  was  to  throw  ink 
on  his  will  instead  of  sand,  though  it  might  be  a  complete  defac- 
ing of  the  instrument,  it  would  be  no  revocation ;  or  suppose  a 
man  having  two  wills  of  different  dates  by  him,  should  direct  the 


124  CANCELLATION  BY  MISTAKE. 

former  to  be  canceled,  and  through  mistake,  the  person  directed 
should  cancel  the  latter,  such  an  act  would  be  no  revocation  of  the 
latter  will.  A  cancellation  therefore,  through  accident  or  mistake, 
will  be  ineffectual  to  revoke  a  will.  (  Thyne  v.  Stanhope,  supra. 
Onions  v.  Tyre?',  1  P.  Wms.  344.  2  Vernon,  743.  Perrott  v. 
Perrott,  14  East,  423,  439.) 

Nor  does  it  make  any  difference  whether  the  mistake  be  in  a 
matter  of  fact  or  of  law.  Lord  Ellenborough  thought,  in  Perrott 
v.  Perrott,  supra,  that  a  mistake  in  point  of  law,  clearly  evidenced 
by  what  occurred  at  the  time  of  canceling,  would  have  the  same 
operation  as  a  mistake  in  matters  of  fact. 

The  revised  statutes  of  New  York,  (2  R.  IS.  64,  §  42,)  must  be 
construed  with  reference  to  the  decisions  of  the  courts.  To  ren- 
der a  burning,  tearing,  canceling,  obliterating  or  destroying  of  a 
will,  a  revocation,  it  is  necessary  that  the  act  should  have  been 
done  with  the  intent  and  for  the  purpose  of  revoking  the  same, 
by  the  testator  himself,  or  by  another  person  in  his  presence  by 
his  direction  and  consent ;  and  when  so  done  by  another  person,  the 
direction  and  consent  of  the  testator,  and  the  fact  of  such  injury  or 
destruction,  are  required  to  be  proved  by  at  least  two  witnesses. 

In  a  case  in  the  prerogative  court,  (In  the  goods  of  Appleby, 
1  Hagg.  66,)  an  executor  having  in  pencil  altered  a  will  by 
the  direction  of  the  testator,  who  approved  it  when  so  altered, 
and  then  canceled  it,  only  in  order  that  another  might  be  drawn 
up,  the  preparation  of  which  was  prevented  by  the  death  of  the 
testator,  Sir  John  Nicholl  held  that  such  cancellation,  being  pre- 
paratory to  the  making  of  a  new  will  by  the  deceased,  and  con- 
ditional only,  was  not  a  revocation,  and  he  granted  probate  of  the 
canceled  will  in  its  original  state. 

If  a  testator  tear  off  his  seal  and  signature  at  the  end  of  the  will, 
the  court  will  infer  an  intention  to  revoke  the  whole  will,  this  being 
the  ordinary  mode  of  performing  that  operation.  (Per  Sir  John 
Nicholl  in  Scruby  v.  Fordham,  1  Add.  78.)  If,  on  the  other 
hand,  he  obliterates  only  a  particular  clause,  on  the  same  principle 
it  operates  as  a  revocation  only  pro  tanto.     (Id.) 

If  the  intention  to  revoke  the  will  is  apparent,  the  act  of  cancel- 
lation or  obliteration  shall  carry  such  intention  into  effect,  although 
not  literally  an  effectual  destruction  or  obliteration  of  the  will,  pro- 


LOST  OR  DESTROYED  WILL.  125 

vided  the  testator  completed  all  he  intended  to  do.  But  if  the 
act  of  destruction  or  cancellation  be  inchoate  and  incomplete,  it  will 
not  amount  to  cither  a  partial  or  total  revocation.  Thus,  if  the 
testator  in  a  fit  of  rage  conceive  the  intention  of  destroying  his  will 
and  commence  to  do  so  by  tearing  it,  and  afterwards  desists  and 
puts  the  pieces  together,  his  anger  being  appeased,  it  becomes  a 
question  for  the  jury  on  the  evidence,  whether  the  testator  did  all 
he  intended,  or  whether  he  was  prevented  from  completing  the  act 
of  destruction  he  intended.  And  if  they  find  he  was  so  prevented, 
the  act  of  destruction  being  incomplete,  would  not  operate  as  a 
revocation  of  the  will.     {Doe  v.  Perkes,  5  B.  $•  A.  489.) 

A  lost  or  destroyed  will  cannot  be  proved  in  the  surrogate's 
court.  Jurisdiction  in  such  a  case  formerly  belonged  to  the  court 
of  chancery,  and  since  the  abolition  of  that  court,  to  the  supreme 
court.  {Bulkley  v.  Redmond,  2  Bradf.  S.  R.  281.)  Provision 
for  this  purpose  is  made  by  the  revised  statutes.  (2  R.  S.  67,  as 
altered  in  1830.  3  R.  S.  153,  5th  ed.)  The  statute  applies  to 
wills  of  real  or  personal  estate,  and  to  wills  lost  or  destroyed, 
either  by  accident  or  design.  By  the  67th  section  it  is  enacted 
that  no  will  of  any  testator  who  shall  die  after  the  1st  January, 
1830,  shall  be  allowed  to  be  proved  as  a  lost  or  destroyed  will,  un- 
less the  same  shall  be  proved  to  have  been  in  existence  at  the  time 
of  the  death  of  the  testator  ;  or  be  shown  to  have  been  fraudulently 
destroyed  in  the  lifetime  of  the  testator  ;  nor  unless  its  provisions 
shall  be  clearly  and  distinctly  proved  by  at  least  two  credible  wit- 
nesses, a  correct  copy  or  draft  being  deemed  equivalent  to  one 
witness. 

A  similar  jurisdiction,  in  regard  to  wills  of  personalty,  lost  or 
fraudulently  destroyed,  was  exercised  in  England  by  the  ecclesias- 
tical courts,  whose  practice  in  this  respect  is  substantially  copied 
by  the  N.  Y.  statute  above  cited,  and  made  applicable  to  both  wills 
of  real  and  personal  property.  ( Trevelyan  v.  Trevelyan,  1  Phill. 
149.  Scruby  v.  Fordham,  1  Add.  78.  Foster  v.  Foster,  Id. 
462.)  On  the  establishment  of  such  will  by  the  supreme  court,  it 
is  to  be  recorded  by  the  proper  surrogate,  and  letters  testamentary 
or  of  administration,  with  the  will  annexed,  are  to  be  issued  by  him 
in  the  same  manner  as  on  wills  duly  proved  before  him.     (3  R.  S. 


126  CANCELLATION  WHEN  PRESUMED. 

153,  5th  ed.  supra.)  It  is  presumed  that  before  the  revised  stat- 
utes, the  establishment  of  a  lost  will  of  personal  estate  belonged 
to  the  surrogate's  court,  or  the  court  of  probate,  as  the  case  might 
be,  as  possessing  the  jurisdiction  in  this  state  which  the  ecclesi- 
astical courts  exercised  in  England. 

If  a  testator  is  shown  once  to  have  executed  his  will,  with  the 
ceremonies  required  by  the  statute,  and  on  his  death  the  instru- 
ment is  not  found  amongst  his  papers,  it  has  been  a  controverted 
question,  whether  its  destruction  by  the  testator  or  its  continued 
existence  is  to  be  presumed.  In  Jackson  v.  Belts,  (9  Cowen,  208,) 
the  supreme  court  held  that  in  such  a  case  its  continued  existence, 
till  the  death  of  the  testator,  would  be  presumed,  unless  there  be 
evidence  of  its  having  even  been  canceled,  or  otherwise  re- 
voked by  the  testator.  But  this  case  was  subsequently  unani- 
mously reversed  by  the  court  of  errors,  after  an  elaborate  review 
of  the  English  cases,  and  the  doctrine  was  established  that  in  such 
a  case  the  legal  presumption  is  that  the  testator  had  destroyed  it 
animo  revocandi.  (Betts  v.  Jackson,  6  Wend.  173.)  This  last 
decision  is  undoubtedly  the  law  at  this  time,  both  here  and  in  Eng- 
land. {Bulkley  v.  Redmond,  2  Bradf.  8.  R.  281.  Rickards 
v.  Mumford,  2  Phill.  23,  per  Sir  John  Nicholl.  Jam.es  v.  Cohen, 
3  Curties,  770.) 

The  same  doctrine  applies  to  the  case  of  a  mutilation  or  defacing 
a  will,  which  upon  the  death  of  the  testator  is  found  amongst  his 
repositories.  Such  acts  are  presumed  to  have  been  done  by  the 
testator  himself,  and  to  have  been  done  animo  revocandi,  especially 
if  the  mutilation  be  such  as  is  usually  resorted  to  for  that  purpose. 
{Lambell  v.  Lambell,  3  Hagg.  568.) 

But  this  presumption  is  one  of  fact  and  may  be  repelled  by  other 
circumstances,  as  by  showing  that  the  testator  had  no  opportunity 
of  doing  the  act,  or  that  it  was  done  by  another.  (Minkler  v. 
Minkler,  14  Vt.  R.  125.  Lillie  v.  Lillie,  3  Hagg.  184,  per  Sir 
John  Nicholl.) 


IMPLIED  REVOCATIONS.  127 

Section  IV. 

Of  revocations  effected  by  a  change  in  the  testator's  condition, 
such  as  marriage  and  the  like,  arid  of  implied  and  partial 
revocations. 

It  is  well  remarked  by  Chancellor  Kent,  (4  Coin.  521,  Lecture 
68,)  that  there  is  not  perhaps  any  code  of  civilized  jurisprudence 
in  which  the  doctrine  of  implied  revocations  does  not  exist  and 
apply,  when  the  occurrence  of  new  social  relations  and  moral 
duties  raises  a  necessary  presumption  of  a  change  of  intention  in 
the  testator.  The  rule  was  borrowed  from  the  civil  law,  in  which 
it  was  carried  farther  than  it  ever  has  been  in  modern  times.  The 
presumption  that  a  man  has  changed  his  testamentary  disposition 
of  his  property,  does  not  arise  by  lapse  of  time,  nor  by  the  accu- 
mulation of  wealth,  nor  by  the  prejudice  it  may  occasion  to  parties 
to  whom  it  would  go  in  the  case  of  an  intestacy.  {Swinb.  ft.  7, 
§  15,  pi.  2.)  The  late  English  statute,  (1  Vict.  ch.  26,  §  10,)  has 
enacted  that  "no  will  shall  be  revoked  by  any  presumption  of  an 
intention  on  the  ground  of  an  alteration  of  circumstances."  This 
was  perhaps  no  more  than  a  declaration  of  the  existing  law. 

It  is  proposed  to  notice  a  few  instances  of  implied  revocations, 
and  to  bring  to  the  notice  of  the  reader  the  statutory  provisions 
on  the  subject. 

The  marriage  of  the  testator  and  birth  of  a  child,  when  both 
events  occur  subsequent  to  the  making  of  his  will,  have  been  held 
both  in  England  and  this  country,  to  amount  to  a  revocation  of  a 
will,  whether  of  real  or  personal  estate.  (Brush  v.  Wilkin, 
4  John.  Ch.  506.  Havens  v.  Van  Denburgh,  1  Denio,  27.)  Both 
these  circumstances  must  concur  to  produce  this  result.  Neither 
marriage  alone  of  a  man,  or  the  birth  of  a  child,  alone,  has  such 
effect.  But  the  marriage  of  a  single  woman  operated  as  a  revo- 
cation of  her  will.  This  depended  on  a  different  principle,  the 
effect  of  the  matrimonial  relation  being  to  take  it  out  of  her  power 
to  make  a  will,  and  thus  the  nature  of  the  instrument  would  be 
destroyed  by  its  ceasing  to  be'ambulatory.  Be  this  as  it  may,  the 
New  York  revised  statutes  have  expressly  enacted  that  a  will  ex- 


128  IMPLIED  REVOCATIONS. 

ecuted  by  an  unmarried  woman  shall  be  deemed  to  be  revoked  by 
her  subsequent  marriage.     (2  R.  S.  64,  §  44.) 

The  reason  why  the  marriage  and  birth  of  a  child  shall  operate 
to  revoke  the  will  of  an  unmarried  man,  was  sometimes  put  upon  the 
supposed  change  of  intention.  ( Gibbens  v.  Cross,  2  Add.  455.) 
When  it  rested  upon  this  foundation,  the  presumed  intention  might 
be  repelled  by  evidence  showing  unequivocally  that  the  testament 
is  to  operate,  notwithstanding  such  marriage  and  issue.     {Id.) 

At  other  times  the  revocation  was  put  upon  the  tacit  condition 
annexed  to  the  instrument  by  the  testator,  at  the  time  it  was 
executed,  that  it  should  become  void  on  such  a  total  change  of  his  cir- 
cumstances as  would  be  occasioned  by  marriage  and  issue.  {Mars- 
ton  v.  Roe,  8  Ad.  #*  Ellis,  14.)  Under  that  view  of  the  case,  the 
revocation  would  not  be  prevented  by  any  thing  short  of  a  provis- 
ion in  the  will  for  both  the  wife  and  the  issue.  A  provision  for 
either  one  alone,  would  not  be  enough  for  that  purpose.     (Id.) 

The  revised  statutes  have  provided  for  most  of  the  cases  which 
can  arise  under  this  head.  Thus,  it  is  enacted  that  if  after  the 
making  of  any  will,  disposing  of  the  whole  estate  of  the  testator, 
such  testator  shall  marry  and  have  issue  of  such  marriage,  born 
either  in  his  lifetime  or  after  his  death,  and  the  wife  of  the  issue 
of  such  marriage  shall  be  living  at  the  death  of  the  testator,  such 
will  shall  be  deemed  revoked,  unless  provision  shall  have  been 
made  for  such  issue  by  some  settlement,  or  unless  such  issue  shall 
be  provided  for  in  the  will,  or  in  such  way  mentioned  therein  as 
to  show  an  intention  not  to  make  such  provision ;  and  no  other 
evidence  to  rebut  the  presumption  of  such  revocation  shall  be 
received.  By  prescribing  the  evidence  which  shall  alone  be  suffi- 
cient to  rebut  the  presumption  of  a  revocation  and  excluding  all 
other  evidence  on  that  point,  the  statute  has  relieved  the  courts 
from  the  effects  of  numerous  conflicting  decisions,  and  given 
certainty  to  the  law. 

A  will  made  by  a  sane  person  does  not  become  void  by  his  sub- 
sequent derangement.  This  springs  from  the  distinction  taken  by 
Lord  Coke,  (in  Andrew  OgneVs  case,  4  Co.  50  b,)  between  a  dis- 
ability created  by  the  act  of  God,  and  by  the  act  of  the  party.  If 
the  subsequent  disability  arises  from  the  act  of  God,  as  by  insan- 


IMPLIED  AND  PARTIAL  REVOCATIONS.  129 

ity,  it  does  not  invalidate  the  will.     But  if  it  flows  from  the  act 
of  the  party,  as  by  marriage  &c.,  it  works  a  revocation. 

But  though  the  birth  of  a  child  alone  will  not  revoke  a  will,  yet 
there  is  a  strong  equity  in  favor  of  after-born  children,  for  whom 
no  provision  is  made  in  the  will  of  the  testator,  or  by  any  mar- 
riage settlement.  The  revised  statutes  (2  R.  S.  65,  §  49)  have  thus 
provided  for  that  case.  If  such  child  so  after-born,  be  unprovided 
for  by  any  settlement,  and  neither  provided  for  nor  in  any  way 
mentioned  in  his  will,  every  such  child  shall  succeed  to  the  same 
portion  of  the  father's  real  and  personal  estate,  as  would  have  de- 
scended or  been  distributed  to  such  child  if  the  father  had  died 
intestate,  and  shall  be  entitled  to  recover  the  same  portion  from 
the  devisees  and  legatees,  in  proportion  to  and  out  of  the  parts 
devised  and  bequeathed  to  them  by  such  will.  The  effect  of  this 
provision  upon  the  rights  of  the  post  testamentary  child  is  the 
same,  in  effect,  as  if  the  testator  had  died  intestate.  But  the 
disposition  of  the  matter  by  the  legislature,  was  intended  not  to 
disturb  the  arrangements  which  the  testator  had  made  of  his 
estate,  among  the  several  objects  of  his  bounty,  and  hence  each 
must  contribute  ratably  out  of  that  which  he  would  be  entitled  to 
according  to  the  will,  for  the  purpose  of  making  up  the  distribu- 
tive share  of  the  post  testamentary  child.  (Mitchell  v.  Plain, 
5  Paige,  588.) 

It  remains  to  consider,  under  this  subdivision  of  our  subject, 
some  partial  revocations,  which  have  not  hitherto  been  discussed. 
It  will  be  more  convenient  to  treat  of  the  nature  of  ademptions 
when  we  come  hereafter  to  consider  the  doctrine  with  respect  to 
legacies.     (Post,  Part  3,  ch.  3,  §  1.) 

It  is  proper  to  remember  that  a  will  both  of  real  and  personal 
property,  speaks  of  the  testator's  affairs  as  they  exist  at  the  time 
of  his  death,  if  there  be  nothing  in  the  will  to  give  it  a  different 
effect.  Hence  the  will  cannot  operate  upon  any  property  of  which 
the  testator  has  no  interest  when  the  will  takes  effect.  This  prin- 
ciple applies  both  to  personal  legacies  and  to  devises.  Thus,  when 
the  owner  of  a  slave,  by  his  will,  declared  that  she  should  be  man- 
umitted and  have  her  freedom  immediately  after  his  decease  ;  and 
afterwards  sold  her  as  a  slave,  and  died  ;  it  was  held  that  the  sale 
17 


130  IMPLIED  AND  PARTIAL  REVOCATIONS. 

of  the  slave  by  the  testator  was  pro  tantoa.  revocation  of  the  will 
so  that  she  was  not  entitled  to  her  freedom  after  his  decease.  (In 
the  matter  of  Nati  Mickel,  a  negro  girl  14  John.  324.)  This 
was  upon  the  ground  that  such  would  be  the  operation  of  the  act 
of  disposing  of  any  other  property  owned  by  him.  A  will  being 
ambulatory  till  the  death  of  the  testator,  and  inoperative  till  his 
death,  does  not  prevent  the  testator,  in  his  lifetime,  from  disposing 
of  his  property  as  he  pleases. 

Previous  to  the  revised  statutes  a  devise  of  real  estate,  whether 
general  or  specific,  was  in  the  nature  of  an  appointment  of  the  spe- 
cific estate  which  the  testator  had  at  the  time  of  making  his  will ; 
but  to  take  eifect  only  on  his  death,  leaving  him  in  the  mean  time 
the  absolute  owner  of  the  same.  The  devisor  must  not  only  be 
the  owner  of  the  estate  at  the  date  of  his  will,  but  continue  such 
owner  till  his  death.  (Cruise's  Dig.  tit.  Devise,  ch.  1,  §  10. 
Adams  v.  Whine,  7  Paige,  101.)  The  devise  of  land  was  gov- 
erned by  the  analogy  of  a  specific  legacy  of  personal  estate.  In 
both  cases,  the  alienation  of  the  property  by  the  testator  in  his  life- 
time, operated  as  a  revocation  pro  tanto  of  his  will.  To  this  ex- 
tent the  rule  is  the  same,  at  the  present  time,  and  is  not  changed 
by  the  revised  statutes. 

But  a  doctrine  had  grown  up  which  carried  out  the  princi- 
ple of  implied  revocation  much  further.  Thus,  a  valid  agree- 
ment or  covenant  to  convey  lands,  which  equity  would  enforce 
specifically,  upon  the  principle  that  what  was  agreed  to  be  done 
should  be  considered  as  done,  operated  in  equity  as  a  revocation 
of  the  previous  devise  of  the  same  land.  (  Walton  v.  Walton,  7 
John.  Ch.  258.)  So  also  any  alteration  of  the  estate  or  interest 
of  the  testator  in  the  lands  devised,  by  the  act  of  the  testator,  was 
held  to  be  an  implied  revocation  of  the  will,  on  the  ground  princi- 
pally, of  its  being  evidence  of  an  alteration  of  the  testator's  mind. 
(Cotter  v.  Layer,  2  P.  Wms.  624.)  The  law  required  that  the 
same  intereat  that  the  testator  had  when  he  made  the  will  should 
continue  to  be  the  same  interest,  and  remain  unaltered  till  his  death. 
(4  Kent's  Com.  529.)  The  least  alteration  was  a  revocation.  The 
sale  of  the  real  estate,  and  taking  back  a  bond  and  mortgage  on 
the  same  land,  was  also  a  revocation.  (Adams  v.  Whine,  supra. 
Barstow  v.  Goodwin,  2  Brad.  Sur.  Rep.  413.)     But  a  mortgage 


IMPLIED  AND  PARTIAL  REVOCATIONS.  131 

or  charge  upon  the  estate  was  made  an  exception  to  the  general  rule, 
and  was  only  a  revocation,  in  equity,  pro  tanto,  or  quoad  the  special 
purpose.  {Sparrow  v.  Hardcastle,  3  Atkins,  799  ;  S.  C.  7  T.  R. 
416,  note.) 

The  revised  statutes  have  changed  the  rule  with  respect  to  the 
above  cases  in  part,  by  enacting  that  the  testator's  agreement  to 
convey  any  property  devised  or  bequeathed  in  his  will,  should  not 
be  deemed  a  revocation,  either  at  law  or  in  equity,  but  the  prop- 
erty should  pass  by  the  devise  or  bequest  subject  to  the  same  reme- 
dies on  the  bond,  agreement  or  covenant,  for  a  specific  performance 
or  otherwise,  against  the  devisees  or  legatees,  as  might  be  had 
against  the  heirs  of  the  testator  or  his  next  of  kin,  if  the  same  had 
descended  to  them.     (2  R.  S.  64,  §  45.) 

They  also  provide  that  a  charge  or  incumbrance  upon  any  real 
or  personal  estate,  for  the  purpose  of  securing  the  payment  of 
money  or  the  performance  of  any  covenant,  shall  not  be  deemed  a 
revocation  of  any  will  relating  to  the  same  estate  previously  exe- 
cuted, but  the  devises  and  legacies  shall  take  effect  subject  to  the 
incumbrances.    (Id.  §  46.    Lang-don  v.  Aster's  Ex'rs,  2  Smith,  9.) 

The  foregoing  provisions  do  not  affect  cases  where  the  estate  or 
interest  of  the  testator  in  property  previously  devised  or  bequeathed 
by  him  are  altered,  but  not  wholly  divested  by  a  conveyance,  set- 
tlement, deed  or  other  act  of  the  testator.  This  before  the  revised 
statutes,  we  have  seen  worked  a  revocation  of  the  whole  will.  But 
now  by  the  revised  statutes,  such  alteration  is  declared  not  to  be 
a  revocation  of  the  devise  or  bequest  of  such  property  ;  but  such 
devise  or  bequest  passes  to  the  devisee  or  legatee  the  actual  estate 
or  interest  of  the  testator,  which  would  otherwise  descend  to  his 
heirs,  or  pass  to  his  next  of  kin  ;  unless  in  the  instrument  by  which 
such  alteration  is  made,  the  intention  is  declared,  that  it  shall 
operate  as  a  revocation  of  such  previous  devise  or  bequest.  (Id. 
§  47.)  But  if  the  provisions  of  the  instrument  by  which  such  altera- 
tion is  made,  are  wholly  inconsistent  with  the  terms  and  nature  of 
such  previous  devise  or  bequest,  such  instrument  shall  operate  as 
a  revocation  thereof,  unless  such  provisions  depend  on  a  condition 
or  contingency,  and  such  condition  be  not  performed,  or  such  con- 
tingency do  not  happen.     (Id.  §  48.) 

Bnt  the  statute  does  not  change  the  law  with  respect  to  a  case 


132  REPUBLICATION  OF  WILLS. 

where  the  testator  has  sold  and  conveyed  the  real  estate  devised, 
and  taken  back  a  bond  and  mortgage  for  the  whole,  or  a  part  of 
the  consideration  money.  The  effect  of  such  sale  is  still  to  revoke 
the  will  as  to  the  real  estate  so  sold  and  conveyed.     (Adams  v. 

Winne,  supra.  Barstow  v.  Goodwin,  supra.  Brown  v.  Brown, 
10  Barb.  569.     Beck  v.  McOillis,  9  id.  35.) 

It  would  seem,  however,  that  if  after  such  sale,  the  testator,  in 
his  lifetime,  takes  back  the  property  by  a  reconveyance,  and  is 
seised  of  it  at  his  death,  that  the  devise  will  be  effectual.  (Brown 
v.  Brown,  supra.  See  also,  Rose  v.  Rose,  7  Barb.  174  ;  Arthur 
v.  Arthur,  10  id.  9  ;  Havens  v.   Havens,  1   Sand.   Ch.  326 ; 

Walton  v.  Walton,  7  John.  Ch.  258,  contra.)  But  this  latter  case 
arose  before  the  revised  statutes  enabled  a  will  to  pass  after-ac- 
quired  land. 

Section  V. 
Of  the  republication  of  wills,  and  the  effect  thereof. 

Having  treated  briefly  of  the  various  modes  by  which  a  will  may 
be  wholly  or  partially  revoked,  it  will  be  convenient  now  to  consider 
the  way  in  which  a  will  may  be  republished,  and  of  the  effect  of 
such  republication. 

Republication  is  of  two  kinds,  express  and  constructive.  Express 
republication  occurs  where  a  testator  repeats  those  ceremonies 
which  are  essential  to  constitute  a  valid  execution,  with  the  avowed 
design  of  republishing  the  will.  (1  Jarman  on  Wills,  202,  Per- 
kins1 ed.)  Constructive  republication  takes  place  when  a  testa- 
tor, for  some  other  purpose,  makes  a  codicil  to  his  will ;  in  which 
case  the  effect  of  the  codicil,  if  not  neutralized  by  internal  evidence 
of  a  contrary  intention,  is  to  republish  the  will.  (Id.  Van  Cort- 
land v.  Kip,  1  Hill,  590.)  The  revised  statutes  (2  R.  S.  66,  §  53,) 
have  reference  to  the  republication  of  a  will  which  has  once  been 
revoked  by  a  subsequent  will,  and  the  object  of  the  section  was  to 
prevent  the  destruction,  canceling  or  revocation  of  such  second 
will  from  having  the  effect,  per  se,  of  reviving  the  first  will, 
unless  it  should  appear  by  the  instrument  by  which  the  revocation 
was  effected,  that  it  was  the  intention  to  revive  and  give  effect  to 


REPUBLICATION.  133 

the  first  will  ;  or  unless  after  such  destruction,  canceling  or  revo- 
cation of  the  second  will,  the  testator  should  republish  his  first  will. 

But  there  are  cases,  where  the  first  will  has  never  been  revoked 
by  any  subsequent  will  or  otherwise,  in  which  it  may  be  desired 
by  the  testator  to  republish  his  will,  so  that  it  may  speak  from  the 
time  of  such  republication.  It  is  not  believed  that  the  statute 
prevents  such  republication ;  on  the  contrary,  it  is  supposed  that 
it  may  be  done,  either  by  express  republication,  in  which  the  cer- 
emonies prescribed  for  the  first  execution  must  be  complied  with, 
or  by  a  codicil,  executed  and  attested  in  the  manner  required  for 
the  execution  and  attestation  of  a  will. 

It  is  scarcely  necessary  to  add  that  a  will  once  revoked,  cannot 
be  republished  by  parol.  (  Witter  v.  Mott,  2  Conn.  67.)  Nor  can 
a  will  once  executed  according  to  law,  but  not  revoked,  be  repub- 
lished by  parol,  in  any  other  way  than  by  repeating  the  ceremo- 
nies by  which  it  was  first  made. 

But  a  codicil  duly  executed  amounts  to  a  republication  of  the 
will  to  which  it  refers,  whether  it  be  annexed  to  the  will  or  not,  or 
be  or  be  not  expressly  confirmatory  of  it,  for  every  codicil  is,  in 
construction  of  law,  part  of  a  man's  will,  whether  it  be  so  described 
in  such  codicil  or  not ;  and  as  such,  furnishes  conclusive  evidence 
of  the  testator's  considering  his  will  as  then  existing.  (1  Wms. 
Ex.  175.  Mooers  v.  White,  6  John.  Ch.  375.  Van  Cortland 
v.  Kip,  1  Hill,  590.) 

A  will  executed  by  a  party  under  undue  influence,  may  be  repub- 
lished and  confirmed  by  a  codicil  executed  afterwards,  and  when 
the  testator  is  free  from  such  influence.  ( O'Neal  v.  Farr,  1  Rice's 
S.  C.  Rep.  80.)  So  a  will  containing  a  devise  of  real  estate  but 
not  duly  witnessed,  is  good  if  confirmed  by  a  subsequent  codicil 
having  the  proper  attestation,  though  the  latter  document  be  in  no 
way  annexed  to  the  will  or  prior  codicil,  and  though  the  attesting 
witnesses  to  the  latter  codicil  did  not  see  the  former  one  or  the 
will.  ( Uttertou  v.  Robins,  1  Adol.  8f  Ellis,  423.  Havens  v. 
Foster,  14  Pick.  543.  Miles  v.  Boy  den,  3  id.  216.  Barnes  v. 
Crowe,  1  Ves.jun.  486,  498.) 

But  although  the  general  rule  be  as  above  stated,  yet  if  it  ap- 
pears on  the  face  of  the  codicil  that  it  was  not  the  intention  of  the 
testator  to  republish,  the  ordinary  presumption  derived  from  the 


134  WHO  MAY  BE  AN"  EXECUTOR. 

existence  of  the  codicil  will  be  counteracted.    {Lang don  v.  Astor's 
Executors.  2  Smith,  9.     Strathmore  v.  Bowes,  7  D.  Sf  E.  483.) 


CHAPTER  V. 

OP    THE    APPOINTMENT    OF    EXECUTORS  ]     THEIR    ACCEPTANCE, 
REFUSAL,    AND    RENUNCIATION    OF    THE    OFFICE. 

Section  I. 
Who  are  eligible,  and  who  not. 

An  executor  is  defined,  by  the  elementary  writers,  to  be  the 
person  to  whom  the  execution  of  a  last  will  and  testament  of  per- 
sonal estate  is  confided  by  the  testator's  appointment.  (Toller's 
Law  of  Ex'rs,  30.  2  Bl.  Com.  503.  1  Wms.  Executors,  185. 
Wentworth,s  Ex'rs,  3.)  It  is  not  essential  to  the  validity  of  a 
nomination  of  an  executor,  that  the  will  should  contain  a  testa- 
mentary disposition  of  property.  It  is  a  good  will,  and  entitled 
to  be  proved  as  such,  which  merely  contains  the  appointment  of 
an  executor.  It  was  formerly  supposed  that  if  there  was  no  will, 
there  was  no  executor  ;  and  if  there  was  no  executor,  there  was  no 
Avill.  (  Wentw.  Ex'rs,  4.)  The  former  proposition  is  still  true, 
but  the  latter  is  not.  There  may  be  a  valid  will,  as  will  be  shown 
hereafter,  which  contains  no  nomination  of  an  executor.  {Hubbard 
v.  Hubbard,  4  Seldenf  202.) 

With  respect  to  the  persons  who  may  be  appointed  executor,  it 
may,  perhaps,  be  said  that  all  persons  are  competent  to  serve,  who 
do  not  fall  within  one  or  the  other  of  the  exceptions  in  the  revised 
statutes,  (2  R.  S.  69,  as  amended  in  1830,  vol.  3,  p.  154,  5th  ed.) 
These  statutes  enact  that  no  person  shall  be  deemed  competent  for 
this  purpose,  who,  at  the  time  the  will  is  proved,  is  1.  Incapable  in 
law,  of  making  a  contract,  (except  married  women;)  2.  Under  the 
age  of  twenty-one  years  ;  (3.)  An  alien  not  being  an  inhabitant  of 
this  state ;  (4.)  Who  shall  have  been  convicted  of  an  infamous 
crime ;  (5.)  Who  upon  proof  shall  be  judged  incompetent  by  the 
surrogate  to  execute  the  duties  of  such  trust  by  reason  of  drunk- 
enness, improvidence,  or  want  of  understanding.    A  married  woman 


WHO  MAY  BE  A¥  EXECUTOR.  135 

may  be  appointed  executor,  with  the  consent,  in  writing,  of  her 
husband,  which  consent  must  be  filed  in  the  surrogate's  office,  and 
the  husband  thereby  becomes  liable  for  her  acts.  If  a  feme  solo 
takes  out  letters  testamentary  as  an  executrix,  and  afterwards 
marries,  it  is  n6t  necessary  for  the  husband  to  file  a  written  con- 
sent with  the  surrogate,  to  render  him  liable  for  her  acts  as  such 
executrix.  In  such  a  case  the  husband  is  liable  jointly  with  her 
for  her  acts,  done  in  a  representative  capacity,  after  as  well  as 
before  the  marriage.  This  case  is  not  within  the  statute,  but  de- 
pends on  the  principles  of  the  common  law.  (Bunce  v.  Vander 
Grift,  8  Paige,  37.)  The  statute  is  probably  broad  enough  in  its 
terms  of  exclusion  to  embrace  all  whom  it  would  be  desirable  to 
debar  of  the  office ;  and  if  so,  all  other  persons  are  of  course 
eligible. 

Some  of  these  disabilities  are  permanent,  and  others  of  a  tem- 
porary nature  or  subject  only  to  some  qualification.  Thus,  a 
person  who  is  a  non-resident  of  the  state,  though  in  other  re- 
spects competent,  is  not  entitled  to  letters  testamentary  until  he 
shall  have  given  the  bond  required  of  administrators  in  cases 
of  intestacy.  (Id.  §  7.)  So  also,  in  case  of  the  personal  disa- 
bility arising  from  infancy,  alienage  and  coverture,  if  such  disa- 
bility be  removed  before  the  execution  of  the  will  is  completed, 
such  person  shall  be  entitled,  on  application,  to  supplementary 
letters  testamentary,  to  be  issued  in  the  same  manner  as  the 
original  letters,  and  shall  thereupon  be  authorized  to  join  in  the 
execution  of  such  will,  with  the  persons  previously  appointed. 
(Id.  §  5.) 

Previous  to  the  revised  statutes,  the  surrogate  was  obliged  to 
grant  letters  testamentary  to  the  executor  named  by  the  testator, 
although  he  was  known  to  be  insolvent.  ( The  King-  v.  Sir  Rich- 
ard Raines,  Carthew,  457.)  But  when  the  executor  became  in- 
solvent after  the  making  of  the  will,  although  the  creditors  and 
legatees  of  the  testator  could  obtain  no  relief  in  the  ecclesiastical 
court,  the  court  of  chancery  sometimes  interposed  to  protect  the 
estate  from  waste  or  loss  by  such  insolvency.  (  Utter  son  v.  Mairs, 
4  Bro.  C.  C.  270.  2  Ves.  jun.  S.  C.  95.)  But  poverty  alone,  if 
known  to  the  testator,  was  not  of  itself  sufficient  to  authorize 
the  court  of  chancery  to  take  the  administration  out  of  the  hands 


130  WHO  MAY  BE  AN  EXECUTOR. 

of  the  executor  selected  by  him.  {Howard  v.  Papera,  1  Madd. 
R.  86.  Wood  v.  Wood,  4  Pm>e,  802,  303,  per  Walworth,  Ch.) 
The  revised  statutes,  as  was  well  remarked  by  the  chancellor  in 
Wood  v.  Wood,  supra,  have  introduced  a  new  principle  into  our 
testamentary  law.  A  person  interested  in  the  estate  of  the 
testator,  either  as  creditor,  legatee  or  relative  or  otherwise,  may 
now  object  against  the  granting  letters  testamentary,  to  one  or 
more  of  the  persons  named  in  the  will  as  executors,  on  the  ground 
that  his  circumstances  are  such,  as  not  to  afford  adequate  security 
to  the  creditors,  legatees  and  relatives  of  the  deceased  for  the  due 
administration  of  the  estate.  And  if  the  surrogate  is  satisfied  of 
the  validity  of  the  objections  he  may  require  security  as  in  cases 
of  intestacy.     (2  R.  S.  70,  §  6.) 

The  foregoing  relates  to  the  action  of  the  court  before  the 
granting  of  letters  testamentary.  But  it  is  obvious,  that  cases 
may  happen,  in  which,  after  letters  testamentary  are  granted,  the 
person  appointed  executor  may  become  incompetent  to  serve,  or 
his  circumstances  may  be  so  precarious  as  not  to  afford  adequate 
security  for  his  due  administration  of  the  estate,  or  that  he  has 
removed  or  is  about  to  remove  from  the  state.  In  such  a  case  the 
surrogate,  on  the  application  of  an  interested  party,  can  require 
security  from  the  executor  like  that  required  of  administrators, 
and  in  default  thereof,  he  can  supersede  the  letters  testamentary. 
(2  R.  S.  72,  §§  18,  19,  20,  21.  Cotterell  v.  Brock,  1  Bradf.  148. 
Mandeville  v.  Mandeville,  8  Paige,  475.  Shook  v.  Shook,  19 
Barb.  653.  Henry  v.  Bowers,  Id.  658.  Holmes  v.  Cook, 
2  Barb.  Ch.  R.  426.) 

It  has  been  held  by  the  court  of  appeals,  under  the  foregoing 
provisions,  that  the  surrogate  cannot  supersede  the  letters  testa- 
mentary on  the  ground  that  the  executor  is  legally  incompetent 
"  by  reason  of  improvidence,"  on  pjoof  merely  that  he  is  illiterate, 
and  a  person  of  small  pecuniary  means,  and  that  he  has  been 
guilty  of  misconduct  or  mismanagement  in  administering  the 
trust  estate.  [Emerson  v.  Bowers,  4  Keman,  449.  Coope  v. 
Loioerre,  1  Barb.  Ch.  R.  45.) 

In  McMahon  v.  Harrison,  (2  Seld.  443,)  the  court  of  appeals 
held  that  the  fact  that  a  man  is  a  professional  gambler,  is  presump- 
tive evidence  of  such  improvidence  as  to  render  him  incompetent 


EXECUTOR— WHO  INCOMPETENT  TO  BE.  137 

to  discharge  the  duties  of  executor  or  administrator.  They  thus 
affirmed  the  decision  of  the  supreme  court,  reversing  that  of  the 
surrogate.  (&  C.  10  Barb.  659,  reversing  same  case,  1  Bradf. 
283.) 

It  is  settled,  however,  under  these  legislative  provisions,  that 
■when  there  is  no  ground  for  supposing  that  the  trust  funds  in 
the  hands  of  the  executor  are  in  danger  from  his  improvidence, 
or  his  want  of  pecuniary  responsibility,  he  cannot  be  required  to 
give  security.    (Mandeville  v.  Mandeville,  supra.    1  Bradf.  283.) 

Under  the  corresponding  provisions  of  the  revised  statutes,  in 
relation  to  the  granting  of  letters  of  administration,  (2  R.  S.  15, 
§  32,)  it  has  been  held  that  the  improvidence  contemplated  by  the 
statute,  as  a  ground  of  exclusion,  is  that  want  of  care  or  foresight 
in  the  management  of  property,  which  would  be  likely  to  render 
the  estate  and  effects  of  the  deceased  unsafe  and  liable  to  be  lost 
or  diminished  in  value,  by  improvidence,  in  case  administration 
should  be  granted  to  the  improvident  person.  (Coope  v.  Lowerre, 
1  Barb.  Ch.  45.) 

By  the  English  law,  few  or  none  are  disabled  on  account  of  their 
crimes,  from  being  executors.  But  by  the  civil  and  canon  law,  not 
only  traitors  and  felons,  but  heretics,  apostates,  usurers,  famous 
libelers,  incestuous,  bastards,  persons  excommunicated,  &c,  are 
incapable  of  being  executors.  (Bacon's  Abr.  tit.  Ex'rs  and 
Adm'rs,  A  3.)  The  revised  statutes  have  adopted  a  judicious  rule 
by  excluding  from  this  office  all  persons  convicted  of  an  infamous 
crime,  that  is,  an  offense  the  conviction  for  which  subjects  the 
accused  to  punishment  in  the  state  prison.  The  conviction  here 
alluded  to,  means  a  conviction  upon  an  indictment  or  other  crim- 
inal proceeding.  (Coope  v.  Loiverre,  supra.)  No  degree  of  legal 
or  moral  guilt  or  delinquency  is  sufficient  for  this  purpose,  unless 
such  person  has  been  actually  convicted  of  an  infamous  crime,  in 
the  ordinary  mode  of  judicial  procedure.     (Id.) 

It  would  seem,  from  what  was  said  in  Emerson  v.  Bowers, 
(4  Kern.  449,)  that  the  fact  that  the  party  named  as  executor  in  a 
will  was  illiterate,  if  in  other  respects  competent,  affords  no  ground 
for  the  surrogate  to  withhold  the  granting  of  letters  testamentary 
to  him,  nor  for  superseding  the  same  afterwards. 
18 


138  BY  WHAT  WORDS  APPOINTED. 

Our  next  inquiry  under  this  head  is,  by  what  words  the  ap- 
pointment may  be  made.  From  what  has  been  said  it  is  obvious 
that  the  office  is  created  by  a  testamentary  appointment.  This 
may  be  either  express  or  implied.  {Ex  parte  Morrell,  2  Brad. 
32.)  It  is  express  when  the  testator,  in  plain  words,  nominates, 
constitutes  and  appoints  a  person  to  be  an  executor.  In  like 
manner  any  words  which  either  directly  or  by  way  of  circumlocu- 
tion, recommend  or  commit  to  one  or  more  the  charge  and  office  or 
the  rights  which  appertain  to  an  executor,  amount  to  such  appoint- 
ment. Thus,  if  the  testator  say,  "I  appoint  my  nephew  my  resid- 
uary legatee,  to  discharge  all  lawful  demands  against  my  will,"  the 
nephew  may  be  admitted  as  executor.  ( Grant  v.  Leslie  2  Phil. 
116.) 

So  in  the  case  of  a  nuncupative  will  by  a  mariner  at  sea,  when 
the  testator,  in  extremis,  was  asked  who  he  wanted  to  settle  his 
affairs,  answered,  "  I  want  you  to  do  it,"  referring  to  the  mate  of 
the  vessel,  it  was  said  by  Mason,  J.,  in  delivering  the  opinion  of 
the  court  of  appeals,  that  he  thought  that  sufficient  to  appoint  the 
mate  executor  of  the  will.     (Hubbard  v.  Hubbard,  4  Seld.  203.) 

So  an  executor  may  be  appointed  by  necessary  implication ;  as 
where  the  testator  says,  I  will  that  A.  B.  be  my  executor,  if  C.  D. 
will  not.  In  this  case  C.  D.  may  be  admitted,  if  he  pleases,  into 
the  executorship.     (Godol.  pt  2,  ch.  5,  §  3.) 

An  executor  may  be  appointed  for  a  particular  time,  or  for  a 
limited  purpose.  He  may  then  be  appointed  general  executor  in 
a  codicil,  by  implication  and  without  express  words.  {In  the  goods 
of  Aird,  1  Hogg.  336.)  When  the  appointment  is  limited  the  pro- 
bate should  be  limited  also. 

The  appointment  may  be  either  absolute  or  qualified.  It  may 
be  qualified  by  limitation  in  point  of  time,  or  in  reference  to  the 
place  wherein,  or  the  subject  matter  whereon  the  office  is  to  be  ex- 
ercised. A  man  may  be  appointed  executor  at  the  expiration  of 
five  years,  or  any  other  time,  from  the  death  of  the  testator.  Let- 
ters testamentary  cannot  be  granted  to  him  till  that  time  arrives, 
and  in  the  mean  time,  administration  with  the  will  annexed  must 
be  granted,  unless  an  executor  is  appointed,  as  he  may  be,  for  the 
intermediate  time.  It  may  be  limited  in  point  of  place  ;  one  man 
being  appointed  executor  for  the  goods  in  one  place  and  another 


NOT  ASSIGNABLE.  139 

in  another.  (Swinb.  pt.  4,  §  18,  pi.  4.  WentwortlCs  Ex'rs,  14^A 
ed.  22.) 

It  may  be  limited  as  to  the  subject  matter  ;  A.  may  be  executor 
for  the  household  furniture,  B.  for  the  sheep,  and  so  on.  {Lynch 
v.  Bellew,  3  Phill.  424.) 

The  appointment  may  be  conditional,  and  the  condition  may  be 
either  precedent  or  subsequent.  (Bac.  Abr.  tit.  Ex'rs,  C  2.)  But 
although  a  testator  appoint  separate  executors  for  different  parts 
of  his  property,  yet  quoad  creditors,  they  are  all  executors  and 
may  be  sued  as  one.     (Rose  v.  Bartlett,  Cro.  Car.  293.) 

There  is  nothing  in  the  revised  statutes  of  New  York,  forbid- 
ding or  regulating  the  appointment  of  special  executors.  The 
occasion  does  not  often  arise  for  the  action  of  the  courts,  with 
respect  to  this  matter. 

An  executor  had  not  at  common  law,  nor  has  he  now,  the  power 
to  assign  the  executorship  to  another.  (Bac.  Abr.  tit.  Ex'rs,  E  9.) 
The  office  was  a  trust  which  continued  during  his  lifetime,  and 
could  only  be  transmitted  by  will,  at  his  death,  to  an  executor 
named  by  himself;  and  might  so  be  continued  from  one  to  another, 
until  the  series  was  broken  by  an  intestacy.  (Shook  v.  Shook, 
19  Barb.  656.)  But  this  doctrine  as  to  the  transmissibility  of 
the  office,  by  executor  to  executor,  is  abrogated  by  the  revised  stat- 
utes. (2  R.  S.  71,  §  17.)  On  the  death  of  a  sole  executor  or  of 
a  surviving  executor  of  any  last  will,  letters  of  administration 
with  the  will  annexed,  of  the  assets  of  the  first  testator  left  unad- 
ministered,  are  required  to  be  issued.  The  power  and  duties  of 
such  administrator  will  hereafter  be  considered.  The  executor  of 
an  executor  has  now  no  authority,  as  he  had  at  common  law,  to 
commence  or  maintain  any  action  or  proceeding  relating  to  the 
estate,  effects  or  rights  of  the  testator  of  the  first  executor,  or  to 
take  any  charge  or  control  thereof,  as  such  executor.  (2  R.  S. 
448,  §  11.    Shook  v.  Shook,  supra.) 

This  was  no  doubt  intended  to  be  an  effectual  prohibition  of  ac- 
tions, as  well  as  proceedings,  by  an  executor  of  an  executor,  the 
subjects  of  which  relate  to  the  estate,  effects  or  rights  of  the  testator 
of  the  first  executor. 

Nor  will  the  court  inquire,  when  an  application  is  made  for  let- 


140  EXECUTOR  OF  HIS  OWN"  WRONG. 

ters  of  administration  with  the  will  annexed,  on  the  death  of  a 
sole  surviving  executor,  whether  the  appointment  will  lead  to  bene- 
ficial results.  If  there  be  assets  of  the  first  testator  left  unadmin- 
istered,  jurisdiction  is  conferred  upon  the  court,  to  grant  the  letters. 
(Pumpelly  v.  Tinkham,  23  Barb.  321.) 

There  was.  however,  an  exception  to  the  rule  of  transmissibility 
of  the  office.  On  the  death  of  one  of  several  executors  the  interest 
of  the  original  testator  was  held  to  vest  in  the  surviving  executor 
or  executors,  and  not  in  the  executor  of  the  deceased  executor ; 
and  this  was  so  whether  the  surviving  executor  had  renounced  or 
not.  The  rule  is  the  same  at  the  present  day.  (Shook  v.  Shook, 
supra.  WentwortWs  Ex'rs,  14  Ed.  215.  Judson  v.  Gibson, 
5  Wend.  224.) 

It  was  formerly  considered,  that  if  an  individual  interfered  with 
the  goods  of  the  deceased,  he  thereby  made  himself  an  executor  in 
his  own  wrong,  or,  as  it  was  generally  termed,  an  executor  de  son 
tort.  (2  Bl.  Com.  507.  Bacon's  Abridg.  title  Ex'rs  fyc.  B  3.) 
But  this  is  no  longer  the  rule.  It  is  now  enacted  that  no  person 
shall  be  liable  to  an  action  as  executor  of  his  own  wrong,  for  hav- 
ing received,  taken  or  interfered  with  the  property  or  effects  of  a 
deceased  person  ;  but  shall  be  responsible  as  a  wrong-doer  in  the 
proper  action,  to  the  executors  or  general  or  special  administrators 
of  such  deceased  person,  for  the  value  of  any  property  or  effects  so 
taken  or  received,  and  for  all  damages  caused  by  his  acts  to  the 
estate  of  the  deceased.  (2  R.  S.  449,  §  17.)  This  statute  takes 
away  the  remedy  which  the  creditor  before  had  against  the  fraud- 
ulent vendee  and  transferred  the  action  to  the  personal  representa- 
tive of  the  vendor.  He  may  now  sue,  or  controvert  the  validity  of 
the  sale  in  any  legal  form,  when  that  course  is  necessary  for  the 
payment  of  the  debts  of  the  testator  or  intestate.  (Babcock  v. 
Booth,  2  Hill,  185,  186.)  The  court  in  the  same  case  adopts  the 
language  of  Chief  Justice  Savage,  in  Doe  v.  Backentose,  (12  Wend. 
543.)  that  under  our  present  statute,  executors  and  administrators 
have  a  new  character,  and  stand  in  a  different  relation  from  what 
they  formerly  did  to  the  creditors  of  the  deceased  persons  with  whose 
estates  they  are  entrusted.  They  are  not  now  the  mere  represent- 
atives of  their  testator  or  intestate  ;  they  are  constituted  trustees, 


ACCEPTANCE— RENUNCIATION.  141 

and  the  property  in  their  hands  is  a  fund  to  be  disposed  of  in  the 
best  manner  for  the  benefit  of  the  creditors.  (1  Vermilyea  v. 
Beatty,  6  Barb.  429.) 

The  intermeddling  with  the  goods  of  the  deceased  by  a  person 
having  no  rightful  authority  to  do  so,  is  not  a  matter  now  cogniza- 
ble in  surrogates'  court,  and  the  doctrines  in  relation  to  it  do  not 
belong  to  the  subject  of  this  treatise. 

Section  II. 

Of  the  executor's  refusal  or  acceptance  of  the  office,  and  of  the 
consequences  of  such  refusal. 

There  are  two  ways  in  which  an  executor  named  in  the  will,  may, 
before  taking  the  oath  of  office,  be  discharged  from  his  trust.  In 
one  of  these  modes  he  is  active,  and  the  other  passive.  The  first 
is  by  a  renunciation  of  the  office,  and  the  last  is  merely  by  omit- 
ting or  declining  to  take  upon  him  the  office. 

A  renunciation  is  a  written  declination  of  the  office  of  executor, 
executed  in  the  presence  of  two  witnesses.  (2  R.  iS.  70,  §  8.)  To 
be  effectual  it  must  be  proved  before  the  surrogate,  who  took  the 
proof  of  the  will,  and  be  filed  and  recorded  by  him.  As  a  person 
does  not  become  an  executor  by  intermeddling,  it  is  presumed  a 
renunciation  may  be  received,  at  any  time,  or  in  any  stage  of  the 
proceedings,  if  the  executor  has  not  taken  the  oath  of  office  and 
received  letters  testamentary.     (See  Appendix,  Nos.  3  and  4.) 

In  an  early  case,  it  was  held  by  the  king's  bench  that  an  execu- 
tor by  administering  had  taken  upon  himself  the  executorship,  and 
put  it  out  of  his  power  to  refuse,  and  that  the  ordinary  had  no 
jurisdiction  to  accept  a  refusal,  and  grant  administration,  during 
his  life,  cum  testamento  annexo  to  another.  (  Wankford  v.  Wank- 
ford,  (1  Salk.  308.)  But  the  law  seems  to  be  now  in  England 
that  the  ordinary  may  accept  the  executor's  refusal,  notwithstand- 
ing he  had  administered.  (  WentwortlCs  ExWs,  14th  ed.  91.)  In 
Jackson  v.  Whitehead,  (3  Phill.  577,)  an  executor  who  had  taken 
the  oath  of  office  and  given  an  appearance  in  a  suit,  touching  the 
validity  of  a  will,  was  allowed  to  renounce  probate  and  become  a 
witness  in  the  cause.     In  this  case,  however,  probate  was  stopped 


142  REFUSAL  TO  SERVE. 

by  a  caveat,  so  that  letters  testamentary  had  not  been  delivered 
to  the  executor. 

A  person  might  at  common  law  be  deemed  an  executor  as  to 
strangers,  and  yet  his  renunciation  be  accepted  by  the  court. 
(  WentwortK  s  Ex'rs,  92.)  Such  is  not  the  laws  ince  the  revised 
statutes.  For  it-is  presumed  that  on  a  plea  of  ne  unque  executor ', 
evidence  of  an  intermeddling  is  not  sufficient  to  make  out  the  issue 
on  the  part  of  the  plaintiff.  The  proof  whether  the  party  is  an 
executor  or  not,  depends  on  the  records  of  the  proper  court,  and 
not  on  any  act  in  pais,  of  the  party.  ( Vermilyea  v.  Beat]/,  6  Barb. 
429.      Wever  v.  Marvin,  14  id.  376.) 

With  respect  to  the  refusal  of  an  executor,  at  common  law,  it  is 
laid  down  that  it  cannot  be,  verbally,  or  by  word,  but  must  be  done 
by  some  act  entered  or  recorded  in  the  spiritual  court,  and  not  be- 
fore neighbors  in  the  country.    (  WentwortKs  ExWs,  88.    14  Ed.) 

If  the  surrogate  be  appointed  executor  he  has  no  jurisdiction  of 
the  cause,  but  the  right  of  probate  is  given  to  the  local  officer,  in 
such  county,  elected  to  discharge  the  duties  of  surrogate,  the  county 
judge  or  district  attorney,  as  the  case  may  be.  (*S*ee  2  R.  &.  79, 
5  48,  as  amended  in  1830,  and  as  amended  by  law  of  1843,  ch. 
121,  §  1.     L.  of  1847,  ch.  470,  §  32.     3  R.  S.  165,  166,  5th  ed.) 

In  England,  if  a  party  renounces  in  person,  he  takes  an  oath 
that  he  has  not  intermeddled  with  the  estate,  and  that  he  will  not 
intermeddle  with  a  view  of  defrauding  creditors.  {Toller,  42.) 
This  is  not  required  by  the  revised  statutes,  and  does  not  seem  to 
be  necessary. 

It  remains  under  this  section  to  consider  the  refusal  of  an  exec- 
utor to  serve,  he  being  passive.  This  comes  by  his  refusal  or 
neglect  to  appear  before  the  surrogate  and  take  the  oath  of  office, 
in  which  case  if  his  co-executor  appears  probate  is  granted  to  him, 
and  the  authority  of  the  executor  not  appearing  is  thus  superseded. 
(  Wever  v.  Marvin,  supra.  Lawrence  v.  Lawrence,  3  Barb.  Ch. 
74.)  But  he  may,  at  any  subsequent  time  after  the  death  of  the 
co-executor,  appear  and  qualify,  in  which  case  letters  testamentary 
will  be  granted  to  him.  So  also,  if  he  has  actually  renounced,  he 
cannot,  as  a  matter  of  course,  retract  his  renunciation  until  after 
the  death  of  the  executor  to  whom  letters  were  issued.     (Judson 


REFUSAL  OF  OKE  EXECUTOR.  143 

v.  Gibson,  5  Wend.  227.)  When  all  renounce,  and  administration 
with  the  will  annexed  has  been  actually  granted,  it  is  too  late  to 
retract  the  renunciation,  at  least  during  the  life  of  the  administra- 
tor. {Toller 's  Law  of  Exhs,  422.  Robertson  v.  McGeoch,  11 
Paige,  G42.)  The  general  rule  with  respect  to  retraction  seems 
to  be,  that  it  must  be  made  before  other  parties  have  acquired 
rights,  by  the  action  of  the  probate  court  upon  such  renunci- 
ation.    (Id.) 

If  there  be  several  executors  named  in  the  will,  admitted  to 
probate,  and  no  objections  be  filed  against  the  granting  of  letters 
testamentary  to  them,  it  would  seem  that  the  surrogate  may  issue 
such  letters  to  any  one  of  them  who  appears  and  takes  the  oath  of 
office,  without  requiring  the  others  who  do  not  appear  to  renounce 
the  appointment.  The  surrogate  has  no  jurisdiction  to  summon 
the  non-appearing  executors  to  take  upon  themselves  the  burden 
of  the  office,  except  upon  the  application  of  another  executor,  or  of 
the  widow,  or  some  one  of  the  next  of  kin,  or  a  legatee  or  creditor 
of  the  testator.  If  neither  of  them  require  the  action  of  the  court, 
in  that  behalf,  and  the  time  for  issuing  letters  has  arrived,  it  would 
seem  that  the  surrogate  may  issue  the  letters  to  the  one  who  ap- 
pears and  qualifies,  the  effect  of  which  will  be  to  supersede  the 
executor  not  appearing,  until  he  shall  appear  and  qualify. 
(2  R.  S.  71,  §  15.)  There  is  a  strong  implication  from  the  lan- 
guage of  this  section,  especially  when  compared  with  the  9th,  10th, 
11th  and  12th  preceding  sections,  that  the  non-appearing  executor, 
who  is  thus  superseded,  may  appear  at  any  time,  even  before  the 
death  of  those  to  whom  letters  have  been  granted,  and  on  taking 
the  oath  of  office,  be  entitled  to  supplementary  letters  testamentary, 
which  will  have  the  effect  to  join  him  in  the  administration  of  the 
estate,  with  those  to  whom  letters  were  originally  granted. 

It  was  probably  to  prevent  the  inconvenience  which  might  result 
from  such  a  course  that  the  provision  was  made  in  the  sections 
alluded  to,  authorizing  the  surrogate,  on  the  application  of  those 
interested,  to  compel  the  defaulting  executor  to  appear  and  qualify 
within  a  certain  time  therein  to  be  limited,  or  in  default  thereof 
that  he  will  claim  to  have  renounced  the  appointment.  (2  R.  S. 
155,  156,  §  9  to  12,  5th  ed.)     It  is  probable  that  the  order  of  the 


144  REFUSAL  OF  ONE  EXECUTOR. 

surrogate,  in  such  a  case,  declaring  and  decreeing  that  such  person 
has  renounced  his  appointment  as  such  executor,  -will  have  the 
same  effect  as  if  he  had  renounced  the  appointment  by  an  instru- 
ment in  writing  proved  before  the  surrogate  and  recorded,  and 
prevent  his  retraction  of  it  till  the  death  of  the  last  surviving  ex- 
ecutor to  whom  the  letters  were  granted. 

The  old  authorities  are  that  when  there  are  divers  executors 
named  in  the  will,  and  some  of  them  refuse  and  others  prove  the 
testament,  they  who  refuse  may,  after  at  their  pleasure  administer, 
notwithstanding  such  refusal,  before  the  ordinary.  (Bum's  E.  L. 
title  Wills,  Probate,  p.  611.)  And  this,  the  same  author  says,  is 
called  a  double  probate,  which  is  in  this  manner ;  the  first  that 
comes  in,  takes  probate  in  the  usual  form,  with  reservation  to  the 
rest.  Afterwards,  if  another  comes  in,  he  also  is  to  be  sworn  in 
the  usual  manner,  and  an  engrossment  of  the  original  will  is  to  be 
annexed  to  such  probate  in  the  same  manner  as  the  first_;  and  in 
the  second  grant,  such  first  grant  is  to  be  recited.  And  so  as  if 
there  be  more  that  come  in  afterwards.  (Id.)  For  notwithstand- 
ing their  refusal  at  first,  they  still  continue  executors  ;  and  at  any 
time  during  the  lives  of  their  companions  they  may  prove  the  will, 
pay  debts,  make  releases,  and  must  be  joined  in  all  suits  where  the 
co-executors  are  plaintiffs,  because  they  are  all  privy  to  the  will ; 
but  not  when  they  are  defendants,  because  the  plaintiff  is  not 
bound  by  law  to  take  notice  of  any  but  those  who  have  proved  the 
will.  (Id.  Sivinb.  ch  444.)  In  Bodle  v.  Hulse,  (5  Wend.  313,) 
this  doctrine  is  recognized.  The  proper  practice,  says  Savage, 
Ch.  J.,  is,  when  one  renounces,  to  prosecute  in  the  name  of  all  the 
executors  named  in  the  will,  if  living,  and  on  summons  to  those 
who  will  not  join,  there  will  be  a  judgment  of  severance,  and  then 
the  others  proceed  and  recover  in  their  own  names.  (  Toller,  44, 
45.  3  Bacon,  32.  '  Cro  Jac.  420.  Hensloe's  case,  9  Coke,  37.) 
The  case  of  Bodle  v.  Hulse,  (supra,)  arose  before  the  revised 
statutes.  The  effect  of  declaring  that  the  issuing  of  letters  testa- 
mentary  to  one,  is  a  supersedeas  to  all  named  in  the  will,  and  not 
named  in  the  letters  testamentary,  operates  as  an  abrogation  of 
the  rule  requiring  all  to  join  in  an  action,  whether  named  in  the 
letters,  or  not.  Be  that  as  it  may,  the  legislature,  at  a  later  day, 
removed  all  doubts  on  the  subject,  by  enacting,  that  in  actions 


OF  PROBATE  OF  WILLS.  145 

brought  by  or  against  executors,  it  shall  not  be  necessary  to  join 
those  as  parties,  to  whom  letters  testamentary  shall  not  have  been 
issued,  and  who  had  not  qualified.  (Laws  of  1838,  p.  103.  Law- 
rence v.  Laiorcnce,  3  Barb.  Ch.  74.)  This  statute,  although  it 
settles  the  question  as  to  the  effect  of  the  supersedeas  upon  parties 
to  an  action,  does  not  take  away  the  right  of  retraction  when  the 
person  to  whom  letters  have  been  issued  is  dead.  It  is  presumed 
that  doctrine  remains  unaltered. 


CHAPTER  VI. 

OF    PROBATE,  AND    OF    THE    PROOF    AND    RECORDING    OF   WILLS 
OF    REAL    ESTATE. 

Section  I. 

Of  Probate. 

There  has  been  some  diversity  of  opinion  as  to  what  is  meant 
by  the  probate  of  a  will.  Formerly  it  was  supposed  to  consist  of 
a  copy  of  the  will,  a  certificate,  under  the  seal  of  the  court,  that  it 
was  such  copy,  and  the  certificate  of  the  proof  of  the  will,  all  of 
which  were  annexed  to  the  letters  testamentary,  under  the  seal  of 
the  court.  (KirtlanoVs  Sur.  p.  46.)  In  many,  perhaps  most  of 
the  counties,  the  same  practice  is  continued  at  the  present  day.  It 
is  believed,  however,  that  the  English  practice  did  not  treat  the 
letters  testamentary  as  a  part  of  the  probate.  (1  Wins.  Ex'rs, 
317.)  The  revised  statutes  speak  of  the  letters  testamentary  as 
a  different  instrument  from  the  probate,  the  former  as  being  the 
foundation  of  the  latter.  It  is  provided  that  they  cannot  be  issued 
until  after  the  will  has  been  admitted  to  probate,  nor  then,  until 
after  the  expiration  of  thirty  days,  provided  objections  to  such 
issuing  of  them  are  filed  by  interested  parties,  unless  the  objec- 
tions are  sooner  disposed  of.  (3  R.  S.  154,  §§  1,  2,  5th  ed.)  The 
letters  testamentary  are  the  commission  to  the  executors,  and  give 
them  a  standing  in  court.  (Dayton's  Sur.  194.)  It  is  the  letters 
testamentary  alone,  of  which  profert  is  made  in  an  action  by  the 
executor  to  recover  a  debt  due  to  the  testator  in  his  lifetime. 
(2  Chittifs  PL  56.)  It  affords  authentic  evidence  that  the  will  has 
19 


146  OF  PROBATE  OF  WILLS. 

been  admitted  to  probate,  by  the  proper  surrogate.  The  decree 
of  the  surrogate  having  jurisdiction,  declaring  a  -will  of  personal 
property  duly  executed,  is  conclusive  evidence,  in  a  collateral  action, 
of  such  execution,  notwithstanding  it  be  shown  that  there  was  but 
a  single  subscribing  witness  to  the  will.  ( Vandeiyoel  v.  Van 
Vallcenbiirgh,  2  SeU,  190.  2  it!.  S.  01,  §  29.)  It  remains  such 
evidence  until  such  probate  is  reversed  on  appeal,  or  revoked  by 
the  surrogate,  or  the  will  is  declared  void  by  a  competent  tribunal. 
(Id.)     (For  form  of  probate  and  letters  see  Appendix,  No.  21.) 

No  right  can  be  asserted  in  any  court  under  such  will,  nor  can 
any  power  be  exercised  by  an  executor  named  therein,  except  to 
pay  funeral  charges,  and  to  do  such  acts  as  are  necessary  for  the 
preservation  of  the  estate,  until  the  will  is  admitted  to  probate  and 
letters  testamentary  are  granted.     (2  R.  8.  71,  §  16.) 

Nor  are  the  letters  testamentary,  as  in  England,  merely  opera- 
tive as  the  authentic  evidence  of  the  executor's  title.  They  impart 
to  him  nearly  all  the  power  he  possesses  of  carrying  into  effect 
the  will  of  the  testator.  Without  them  he  cannot  pay  a  debt  of 
his  testator,  or  in  any  way  charge  the  estate.  The  acts  which  he 
is  permitted  to  do  before  the  granting  to  him  of  letters  testamen- 
tary, are  such  as  any  stranger  might  perform,  at  common  law, 
without  being  deemed  an  executor  de  son  tort. 

Before  the  revised  statutes,  the  rule  prevailing  in  England,  ob- 
tained here,  of  considering  the  probate,  by  which  in  common  par- 
lance was  embraced  not  only  the  proof  of  the  will  but  the  granting 
of  letters  testamentary  thereon,  as  merely  the  authenticated  evi- 
dence, and  not  at  all  as  the  foundation  of  the  executor's  title. 
Upon  those  principles  it  was  held  as  a  legitimate  consequence,  that 
an  executor,  before  proving  the  will,  might  do  almost  all  the  acts 
incident  to  his  office,  except  some  of  those  which  related  to  suits. 
Thus  it  was  decided  that  he  might  seize  and  take  into  his  hands 
any  of  the  testator's  effects  ;  he  might  enter  peaceably  into  the 
house  of  the  heir,  for  that  purpose,  and  take  specialties  and  other 
securities  for  the  debts  due  to  the  deceased.  He  might  pay  or 
take  releases  of  debts  owing  from  the  estate,  and  he  might  receive 
or  release  debts  which  were  owing  to  it.  So  he  might  sell,  give 
away,  or  otherwise  dispose  of,  at  his  discretion,  the  goods  and  chat- 
tels of  the  testator ;  he  might  assent  to  or  pay  legacies ;  and  he 


EXECUTOR'S  POWER  BEFORE  PROBATE.      147 

might  enter  on  the  testator's  terms  for  years,  and  all  before  pro- 
bate. (Bac.  Abr.  tit.  Ex'rs  and  Adirirs,  E  14.  Wentworth's 
Off.  of  Ex'r,  14tth  ed.  81  et  seq.) 

Although  the  power  of  the  executor  before  probate,  is  now 
greatly  restricted  from  what  it  formerly  was,  yet  in  many  respects 
the  probate  when  granted,  is  said  to  have  relation  to  the  time  of 
the  testator's  death.  The  law,  for  certain  purposes,  does  not  recog- 
nize an  interval  as  existing  between  the  testator's  death  and  the 
issuing  of  letters  testamentary  to  his  executors.  The  rights  in 
relation  to  the  personalty,  which  existed  in  the  former,  in  his  life- 
time, are  deemed  by  legal  fiction  to  be  vested  at  his  death  in  the 
latter.  This  retrospective  operation  of  the  probate  is  necessary, 
in  some  instances,  for  the  purpose  of  justice.  Without  it  dam- 
ages could  not  be  recovered  for  an  injury  to  the  personal  property 
of  the  deceased,  committed  after  the  death  of  the  testator  and 
before  probate  of  his  will.  The  same  doctrine  of  relation  extends 
to  criminal  proceedings.  Hence,  if  a  man  die,  having  made  a  will 
and  appointed  an  executor,  the  goods  shall  be  supposed  to  be  the 
goods  of  the  executor,  even  before  probate  is  granted  to  him. 
(2  Russell  on  Crimes,  99.  1  Hale,  514.)  The  revised  statutes 
have  not  interfered  with  this  doctrine. 

At  common  law,  an  executor  might  commence  an  action  before 
probate.  It  was  enough  if  he  had  obtained  the  letters  testament- 
ary before  declaring,  and  made  profert  of  them  in  his  declaration. 
This  made  the  commencement  of  the  suit  good  by  relation.  {Bac. 
Abr.  Ex'rs  and  Adirfrs,  E  1,  p.  14.)  The  same  rule  applied  in 
equity.  (Humphreys  v.  Humphreys,  3  P.  Wms.  351.)  But 
this  doctrine  has  been  abrogated  by  the  revised  statutes,  and  no 
suit  can  be  commenced  by  executors,  previous  to  the  granting  to 
them  of  letters  testamentary.  ( Thomas  v.  Cameron,  16  Wend. 
Re]}.  579.) 

Having  thus  shown,  in  a  general  way,  what  an  executor  may  do 
before  probate,  and  to  what  extent  the  law  of  relation  has  been 
modified  by  the  revised  statutes,  it  will  be  proper  next  to  inquire 
in  what  court  the  application  for  probate  is  to  be  made.  It  will 
be  more  convenient  to  consider,  in  a  separate  section,  the  proceed- 


148  BY  WHAT  COUET  GRANTED. 

ings  to  record  a  will  of  real  estate.  The  doctrine  in  relation  to 
probate  has  reference  to  wills  of  personal  property  alone,  or  to 
wills  of  a  mixed  character,  disposing  of  both  real  and  personal 
property.  There  are  some  proceedings  which  are  common  to  both 
cases,  and  it  will  therefore  be  impossible  to  avoid  all  repetition. 

Under  the  act  of  1813,  (1  R.  L.  444,)  and  while  the  court  of 
probate  was  an  existing  tribunal,  the  surrogates  of  the  different 
counties  had  no  jurisdiction  to  prove  the  will,  or  grant  letters  of 
administration  of  the  estate  of  a  person,  not  an  inhabitant  of  this 
state,  who  died  either  within  it  or  out  of  it,  or  of  a  person,  being 
an  inhabitant,  who  died  out  of  the  state.  In  both  those  cases 
the  jurisdiction  was  in  the  court  of  probate.  The  power  of  the 
court  did  not  depend  on  the  question  of  assets.  (Hart  v.  Coltrain, 
19  Wend.  380.  Weston  v.  Weston,  14  John.  428.)  It  was 
governed  by  the  law  of  domicil.  The  jurisdiction  of  the  surro- 
gate depended  on  the  fact,  that  the  deceased  person,  at  or  imme- 
diately previous  to  his  death,  was  an  inhabitant  of  the  same  county 
with  the  surrogate. 

When  the  court  of  probate  was  abolished  it  became  necessary 
to  confer  the  jurisdiction  it  possessed  upon  some  other  tribunal. 
This,  so  far  as  relates  to  testamentary  matters,  now  rests  upon 
the  revised  statutes  as  amended  by  the  act  of  1837,  ch.  460,  §  1, 
(3  R.  S.  363,  5th  ed.)  They  provide  that  the  surrogate  of 
each  county,  (and  this  embraces  any  other  officer  who  by  law  is 
required  to  discharge  the  duties  of  the  office,)  shall  have  jurisdic- 
tion, exclusive  of  every  other  surrogate  within  the  county  for 
which  he  may  be  appointed,  to  take  the  proof  of  last  wills  and 
testaments  of  all  deceased  persons,  in  the  following  cases : 

1.  Where  the  testator,  at  or  immediately  previous  to  his  death, 
was  an  inhabitant  of  the  county  of  such  surrogate,  in  whatever 
place  such  death  may  have  happened. 

2.  Where  the  testator,  not  being  an  inhabitant  of  this  state, 
shall  die  in  the  county  of  such  surrogate,  leaving  assets  therein. 

3.  Where  the  testator,  not  being  an  inhabitant  of  this  state,  shall 
die  out  of  the  state,  leaving  assests  in  the  county  of  such  sur- 
rogate. 

4.  Where  a  testator,  not  being  an  inhabitant  of  this  state,  shall 


MANNER  OF  OBTAINING  PROBATE.  149 

die  out  of  the  state,  not  leaving  assets  therein,  but  assets  of  such 
testator  shall  thereafter  come  into  the  county  of  such  surrogate. 

5.  Where  no  surrogate  has  gained  jurisdiction  under  either  of 
the  preceding  clauses,  and  any  real  estate  devised  by  the  testator 
shall  be  situated  in  the  county  of  such  surrogate. 

These  provisions  embrace  nearly  all  the  cases  which  can  arise. 
But  as  there  are  no  words  of  exclusion,  and  the  clause  in  the  re- 
vised statutes  forbidding  the  exercise  of  jurisdiction,  not  express- 
ly given  by  some  statute  of  this  state,  has  been  repealed ;  (see 
2  R.  S.  220,  221,  §  1,  and  repealing  law  of  1837,  p.  536  ;)  it  has 
been  held  that  in  a  casus  omissus,  the  surrogate  should  not  de- 
cline jurisdiction,  because  the  law  is  silent  as  to  the  mode  in 
which  it  is  to  be  exercised,  where  it  is  apparent  that  a  proper  oc- 
casion to  invoke  his  authority  has  arisen.  The  statutes  regulate 
so  far  as  they  go,  the  exercise  of  the  jurisdiction  in  the  particular 
instances  specified.  (Kohler  v.  Knapp,  1  Bradf.  Sur.  Rep. 
245.)  It  was  well  observed  by  the  learned  surrogate,  in  the  case 
just  cited,  that  there  are  some  cases  not  reached  by  the  letter  of 
the  act,  and  in  regard  to  which,  the  jurisdiction  of  the  surrogate 
still  subsists,  though  not  expressly  regulated.  The  case  of  a  per- 
son not  an  inhabitant  of  this  state,  dying  in  the  county  of  the  sur- 
rogate, and  leaving  no  assets  there,  but  leaving  assets  in  another 
county  ;  and  that  of  a  person,  not  an  inhabitant,  dying  in  the 
county,  leaving  no  assets,  but  assets  thereafter  coming  into  the 
county,  are  not  provided  for,  in  terms,  by  the  revised  statutes. 
{Id.    2  R.  S.  91.) 

It  is  proposed  in  the  next  place  to  point  out  the  manner  of  ob- 
taining probate,  and  to  notice  the  practice  of  the  surrogate's  court 
with  respect  thereto. 

At  common  law  the  proper  person  to  cause  the  will  to  be  proved 
was  the  executor  named  in  it.  Until  renunciation,  he  was  deemed 
the  sole  person  competent  to  be  a  party  for  the  purpose,  unless  in 
case  of  fraud  or  collusion.  The  New  York  statute  authorizes  the 
executor,  devisee  or  legatee  named  in  the  will,  or  any  person 
interested  in  the  estate,  to  prove  the  will  before  the  proper  sur- 
rogate ;  either  for  probate  or  as  a  will  of  real  estate.  (L.  of  1837, 
p.  524,  §  4.    3  R.  8.  146,  §  49,  bth  ed.)    It  is  competent,  there- 


150  PKOBATE  OF  LOST  WILL. 

fore,  for  a  legatee  to  make  the  application  for  probate,  and  even 
when  it  has  alrready  been  made  by  the  executor,  to  intervene  for 
the  purpose  of  having  the  will  proved  and  his  interest  protected. 
(  Walsh  v.  Ryan,  1  Brad/,  434.  Foster  v.  Tyler,  7  Paige.  52.) 
(For  petition  for  citation,  &c.  &c,  see  Appendix,  5  to  11.) 

If  the  will  be  lost  or  destroyed,  the  surrogate's  court  has  no 
jurisdiction  to  establish  the  will.  {Bulkley  v.  Redmond,  2  Bradf. 
281,  286.)  In  such  a  case  whether  the  will  be  a  will  of  real  or 
personal  estate,  and  whether  it  be  lost  or  destroyed  by  accident  or 
design,  the  former  court  of  chancery,  now  the  supreme  court,  pos- 
sesses the  power  by  statute  to  take  proof  of  the  execution  and 
validity  of  such  will,  and  to  establish  the  same,  as  in  the  case  of 
lost  deeds.  (2  R.  S.  67,  §  63.  3  id.  153,  5th  ed.)  The  mode 
of  conducting  the  proceedings  in  the  supreme  court,  belongs 
to  a  treatise  on  the  practice  of  that  court,  and  is  not  within  the 
scope  of  the  present  work. 

The  decree  of  the  court,  establishing  such  will,  is  required  to  be 
recorded  by  the  surrogate  of  the  county,  to  whom  probate  would 
have  belonged,  if  such  will  had  not  been  lost  or  destroyed,  and  let- 
ters testamentary,  or  letters  of  administration  with  the  will  annexed, 
as  the  case  may  be,  are  to  be  issued  thereon,  in  the  same  manner, 
as  upon  wills  duly  proved  before  him.     (2  R.  S.  67,  §  64.) 

At  common  law,  if  the  executor  had  not  the  will  in  his  custody, 
but  some  other  person,  the  latter  might  be  compelled  to  exhibit  it 
to  the  court.  The  revised  statutes,  as  originally  framed,  author- 
ized the  surrogate  on  the  application  of  any  person  interested,  to 
issue  a  citation  to  such  person  having  the  will,  requiring  him  to 
produce  the  same  at  such  time  and  place  as  he  should  deem  reason- 
able, to  the  intent  that  it  might  be  proved.  The  neglect  or  refusal 
to  produce  the  will  in  obedience  to  such  citation  subjected  the  de- 
faulting party  to  imprisonment  until  he  should  produce  it.  (2  R.  S. 
60,  §  25.)  But  this  section  was  repealed  by  the  act  of  1837, 
page  536,  and  none  was  substituted  in  its  place. 

The  only  existing  provision  compelling  the  production  of  a  will 
before  the  surrogate,  is  that  by  the  10th  and  11th  sections  of  the 
first  title,  chapter  6,  of  the  revised  statutes,  (2  R.  &  58 ;  3  id.  139, 
5th  ed.)  Those  sections  authorize  the  issuing  of  a  subpoena  duces 
tecum  by  the  surrogate,  commanding  the  person  who  has  the  cus- 


PROOF  IN  COMMON  FORM.  151 

tody  of  the  will  to  produce  the  same  before  the  surrogate  for  the 
purpose  of  its  being  proved.  Disobedience  to  the  writ  is  punishable 
by  imprisonment,  until  such  will  is  produced.  These  sections 
originally  related  only  to  wills  of  real  estate,  but  by  the  act  of 
1837,  page  528,  §  18,  they  are  made  applicable  to  wills  of  both  real 
and  personal  estate,  or  either,  and  to  a  proceeding  by  citation  as 
well  as  by  notice. 

Hence  the  practice  would  seem  to  be,  to  apply  to  the  court  for  the 
subpoena  duces  tecum,  after  the  preliminary  proceedings  had  been 
taken  to  prove  the  will.  An  order  should  be  entered  in  the 
minute  book,  authorizing  the  issuing  of  the  subpoena  duces  tecum. 
(See  Appendix,  Nos.  12,  15.) 

With  respect  to  the  manner  of  proving  the  will  for  probate,  there 
were  formerly  two  ways,  to  wit,  the  common  form  and  per  testes. 

A  will  was  said  to  be  proved  in  common  form,  when  the  execu- 
tor presented  the  will  to  the  court  and  produced  one  or  more  of  the 
witnesses  to  prove  its  execution.  This  was  done  in  the  absence 
and  without  citing  any  of  the  parties  interested,  and  was  formerly 
the  practice  in  this  state.  One  objection  to  this  mode  was,  that  at 
common  law.  the  executor  was  liable,  at  any  time  within  thirty 
years,  on  the  application  of  any  person  having  an  interest,  to  prove 
the  will  in  solemn  form  by  all  the  witnesses.  (1  Jarman  on  Wills, 
219,  Perkins1  ed.)  Thus,  the  probate  granted  on  the  proof  in 
common  form,  was  constantly  in  danger  of  being  revoked,  during 
that  period. 

The  mode  of  proving  a  will  in  common  form  is  in  effect  superse- 
ded by  that  pointed  out  in  the  statute,  and  will  soon  be  considered. 
The  period  of  thirty  years  within  which,  notwithstanding  the  will 
was  admitted  to  probate,  its  validity  might  be  contested,  is  by  the 
revised  statutes  reduced  to  one  year.     (2  R.  iS.  61,  §  30.) 

To  prove  a  will  in  solemn  form,  per  testes,  at  common  law,  all 
those  persons  to  whom  the  administration  of  the  goods  of  the  de- 
ceased would  belong,  in  case  he  died  intestate,  must  be  cited  to  be 
present  at  the  "  probation  and  approbation  of  the  testament."  A 
will  thus  propounded  and  proved  per  testes,  was  conclusive  upon 
all  the  next  of  kin  who  were  cited  to  "see  proceedings."  {Newell  v. 
Weeks,  2  Phill.  221.     Bell  v.  Armstrong,  1  Add.  365,  372.) 


152  PROOF  BY  LAWS  OF  THIS  STATE. 

Within  one  year  after  a  will  has  been  admitted  to  probate  with 
us,  though  it  be  conclusive  in  all  collateral  actions,  and  upon  the 
parties  cited,  until  it  is  reversed  on  appeal,  or  revoked  by  the  sur- 
rogate, or  the  will  be  declared  void  by  a  competent  tribunal,  its 
validity  may  be  contested.  (2  R.  S.  61,  §  29.  Collier  v.  Idley's 
Ex'rs,  1  Bradf.  94.)  And  on  such  contest  the  executor  is  bound 
to  bring  in  his  proof  de  novo,  as  upon  the  original  application  for 
probate.  (Id.)  The  mode  in  which  that  contest  is  to  be  con- 
ducted, and  the  history  of  the  changes  in  this  state,  will  be  found 
well  stated  in  the  opinion  of  the  learned  surrogate  of  New  York, 
in  the  case  last  cited. 

The  practice  in  this  state  is  regulated  by  statute,  and  repeals, 
by  implication,  the  old  practice,  of  a  proof  in  common  form. 

The  statute,  after  prescribing  that  the  executor,  devisee  or  leg- 
atee, or  any  person  interested  in  the  estate,  may  have  the  will 
proved  before  the  proper  surrogate ;  (Lav)s  of  1837,  p.  524,  §  4  ; 
3  R.  8.  146,  §  49,  5th  ed.  ;)  points  out  specifically  the  facts  which 
the  surrogate  is  required  to  ascertain,  by  satisfactory  evidence,  in 
case  the  will  relates  to  personal  estate  alone,  or  to  both  real  and 
personal  estate.  In  the  former  case,  he  is  to  ascertain  the  names 
and  places  of  residence  of  the  widow  and  next  of  kin  of  the  testa- 
tor, or  that  upon  diligent  inquiry  the  same  cannot  be  ascertained. 
{L.  o/1837,  p.  525,  §  5.  3  R.  S.  146,  §  50,  5th  ed.)  He  is  also 
required  to  ascertain  whether  any  and  which  of  the  persons  men- 
tioned are  minors,  and  the  names  and  places  of  residence  of  their 
general  guardians,  if  they  have  any ;  and  if  there  should  be  no 
general  guardian  within  this  state,  he  is  required  by  an  order  to 
be  entered  to  appoint  a  special  guardian  for  such  minor,  to  take 
care  of  his  interest  in  the  premises ;  and  the  written  consent  of 
every  person  so  appointed  special  guardian  to  serve  as  such,  must 
be  filed  with  the  surrogate.  The  testamentary  guardian  named  in 
the  will  to  be  proved,  cannot  for  this  purpose  be  deemed  a  general 
guardian. 

The  surrogate  is  thereupon  required  to  issue  a  citation,  requiring 
the  proper  persons,  at  such  time  and  place  as  shall  be  therein 
mentioned,  to  appear  and  attend  the  probate  of  the  will.  The  cita- 
tion is  required  to  state  who  has  applied  for  the  proof  of  the  will, 


CITATION  HOW  SERVED.  153 

and  whether  it  relates  exclusively  to  either  real  or  personal  estate, 
or  to  both  real  and  personal  estate.  It  must  be  directed  to  the 
proper  persons  by  name,  stating  their  places  of  residence ;  or  if 
any  of  them  are  minors,  to  their  guardians  by  name,  stating  their 
places  of  residence.  If  the  name  or  place  of  residence  of  any  per- 
son who  ought  to  be  cited  cannot  be  ascertained,  such  fact  must 
be  stated  in  the  citation. 

The  statute  then  directs  how  the  citation  shall  be  served  on  the 
persons  to  whom  it  is  directed.  This  is  as  follows  :  1.  On  such  as 
reside  in  the  same  county  with  the  surrogate,  or  an  adjoining 
county,  by  delivering  a  copy  to  such  person,  at  least  eight  days 
before  the  day  appointed  for  taking  the  proof;  or  by  leaving  a 
copy  at  least  eight  days  as  aforesaid,  at  the  dwelling  house,  or 
other  place  of  residence  of  such  person,  with  some  individual  of 
suitable  age  and  discretion,  and  under  such  circumstances  as  shall 
induce  a  reasonable  presumption  in  the  mind  of  the  surrogate, 
that  the  copy  came  to  the  hands  or  knowledge  of  the  person  to  be 
served  with  it,  in  time  for  him  to  attend  the  probate  of  the  will. 
2.  On  such  as  reside  in  any  other  county  in  this  state,  by  deliver- 
ing a  copy  personally  to  such  person,  or  leaving  it  at  his  dwell- 
ing house,  or  other  place  of  residence,  in  the  manner  and  under 
the  circumstances  above  mentioned,  at  least  fifteen  days  before  the 
day  appointed  for  taking  the  proof.  3.  On  such  persons  as  do  not 
reside  in  this  state,  by  delivering  a  copy  personally  to  such  per- 
sons, or  leaving  it  at  his  or  her  dwelling  house,  or  other  place  of 
residence,  not  less  than  fifteen  days  nor  more  than  ninety  days 
before  the  day  appointed  for  taking  proof  of  the  will ;  and  on  such 
persons  as  do  not  reside  in  the  state,  or  whose  places  of  residence 
cannot  be  ascertained,  by  publishing  a  copy  of  the  citation  in  the 
state  paper  for  six  weeks  previous  to  the  day  appointed  for  taking 
the  proof.    {L.of  1837,  p.  525.  7^.1840,  j).  325.   3  R.S.  147,  §53.) 

Before  proceeding  to  take  the  proof  of  the  will,  the  surrogate  is 
further  to  require  satisfactory  evidence  by  affidavit,  of  the  service 
of  the  citation  in  the.  mode  prescribed  by  law.  If  it  has  not  been 
duly  served  on  all  the  persons  who  ought  to  receive  notice,  he 
may  adjourn  the  proceedings  and  issue  a  further  citation  for  the 
purpose  of  bringing  in  such  persons.  (Latos  of  1837,  pp.  525,  6. 
3  R.  8.  148,  §  55,  bth  cd.)  , 
20 


154  PAKTEES  TO  BE  CITED. 

The  citation,  it  has  been  seen,  must  be  directed  to  the  proper 
persons  by  name.  It  is  not  enough  that  it  is  directed  to  the  widow 
and  next  of  kin,  alone.  This  requirement  is  no  more  than  was 
insisted  on  by  the  English  ecclesiastical  courts,  in  analogous  cases. 
(See  Burns  E.  L.  tit.  Citation.)  (See  Appendix,  for  form 
]STo.  10.) 

The  language  of  the  statute  will  be  satisfied  by  an  application, 
ore  tenus,  to  the  surrogate  for  the  citation,  and  by  making  the 
requisite  preliminary  proofs  on  an  oral  examination  of  witnesses, 
or  by  an  affidavit  containing  the  requisite  facts.  But  it  is  more 
conformable  to  the  ordinary  proceedings  of  other  courts  in  similar 
proceedings,  and  equally  a  compliance  with  the  requirement  of  the 
statute,  to  present  a  petition  in  writing  to  the  surrogate,  duly  veri- 
fied, setting  forth  all  the  facts  specified  in  the  statute,  and  asking 
for  the  proper  action  of  the  surrogate  in  the  premises,  together 
with  a  prayer  for  process.  No  further  proof  would  be  needed  in 
the  first  instance.     (For  form  of  petition,  see  Appendix,  No.  5.) 

In  proving  the  will  for  probate,  which  we  are  now  considering, 
the  heirs  at  law,  unless  they  are  the  same  persons  as  the  next  of 
kin,  are  not  proper  parties.  This  will  be  shown  more  fully  in  the 
next  section,  when  we  come  to  treat  of  proving  a  will  of  real  estate, 
with  a  view  to  its  being  recorded  as  such  before  the  surrogate. 

The  term  next  of  kin,  in  the  statute,  is  understood  to  embrace 
only  that  class  of  persons  to  whom  administration  of  the  estate  of 
the  deceased  would  be  committed  in  case  of  intestacy.  (1  Wms. 
Ex'rs,  281.)  It  does  not  embrace  the  representatives  of  a  deceased 
next  of  kin,  although  such  representative  might  be  entitled,  under 
the  statute  of  distributions,  to  a  distributive  share  of  the  estate  of 
the  deceased,  had  he  died  intestate.  Such  representative  is  not 
entitled  to  administration,  if  a  relative  nearer  akin  will  accept. 
(2  R.  S.  74.*) 

In  ascertaining  who  are  the  next  of  kin,  it  is  the  practice  to 
look  back  to  the  time  of  the  testator's  death.  Those  who  are  the 
next  of  kin  at  that  time  are  understood  to  be  the  persons  intended 

*  Mr.  Dayton,  in  his  Offico  of  Surrogate,  page  143,  seems  to  intimate  that  all 
should  be  cited  who  are  entitled  to  share  in  the  personalty,  under  the  statute  of 
distributions.    Sed  Quere  1 


PARTIES  TO  BE  CITED.  155 

by  the  act,  and  not  those  who  may,  by  the  subsequent  death  of 
others,  become  next  of  kin  at  the  time  the  question  arises.  Such 
is  the  rule  in  granting  administration.  If  the  person  entitled  to 
administration,  as  next  of  kin,  dies,  without  obtaining  letters,  the 
surrogate  is  not  bound  to  grant  administration  to  one  who  is  not 
entitled  to  a  beneficial  interest  in  the  effects,  although  by  the  death 
of  intermediate  persons  he  may  have  become  next  of  kin  at  the 
time  the  grant  is  required.  This  construction  satisfies  the  letter 
as  well  as  spirit  of  the  statute,  and  is  conformable  to  the  English 
practice.  {Savage  v.  Ely  the,  2  Hogg.  App.  150,  where  the  whole 
doctrine  is  discussed.) 

A  person  may  be  entitled  to  distribution  who  is  not  entitled  to 
administration,  and  therefore  the  statute  of  distributions  does  not 
afford  the  test  as  to  the  persons  entitled  while  any  person  who  was 
next  of  kin  at  the  death  of  the  deceased,  is  living.  But  when  all 
the  original  next  of  kin  are  dead,  the  practice  of  the  prerogative 
court  is  to  grant  administration  to  the  person  entitled  to  the  ben- 
eficial interest,  whether  next  of  kin  or  not.  (Id.)  And  it  is  pre- 
sumed, if  all  the  persons  who  were  next  of  kin  of  the  testator  are 
dead,  before  a  will  is  offered  for  probate,  the  citation  should  be 
served,  as  in  the  English  practice,  on  the  persons  having  the  bene- 
ficial interest,  under  the  statute  of  distributions,  without  regard  to 
proximity  of  blood.  By  the  death  of  intermediate  persons,  it  may 
happen  that  persons  who  have  become  next  of  kin  have  no  interest 
in  the  estate.  It  would  be  idle  to  cite  them  to  attend  the  probate 
of  a  will,  when  they  could  have  no  motive  to  be  present.  Such 
a  case  is  not  within  the  statute,  and  the  court  is  left  to  proceed  as 
at  common  law.  Those  who  have  the  interest  would,  in  such  case, 
clearly  be  entitled  to  administer,  and  of  course  are  the  per- 
sons on  whom  the  citation  to  attend  the  probate  of  the  will  should 
be  served.  (Savage  v.  Blythe.  supra.  Almes  v.  Almes,  2  Hagg. 
App.  155.) 

In  accordance  with  these  principles,  in  a  case  before  the  surro- 
gate of  New  York,  where  it  appeared  that  the  deceased,  at  the  time 
of  her  death,  was  a  married  woman,  it  was  held  that  the  citation  to 
her  next  of  kin  was  not  sufficient  to  authorize  the  proceeding,  and 
that  a  new  citation  must  issue  to  the  husband.  (Lush  v.  Alburtis, 
1  Bradf.  456.)    By  the  acts  of  1848  and  1849,  authorizing  mar- 


156  IN"  WHAT  PAPER  PUBLISHED. 

ried  women  to  take,  hold,  convey  and  devise  property,  they  may 
make  valid  wills.  But  as  no  special  provision  is  made  in  the  acts 
touching  the  probate  of  their  wills,  it  is  necessary  to  fall  back  on 
the  principles  of  the  common  law,  regulating  the  procedure  of 
the  court.  Notwithstanding  those  acts  relative  to  the  rights  of 
married  women,  the  surplus  of  their  personal  estate,  when  they 
die  intestate,  leaving  a  husband  surviving  them,  belongs,  after  the 
payment  of  debts,  to  the  husband  or  his  representatives,  and  not 
to  the  next  of  kin  of  the  wife.  The  relatives  of  the  wife,  there- 
fore, in  such  a  case,  have  no  interest,  and  are  not  necessary  par- 
ties to  the  proceeding.     {Id.) 

In  case  it  should  be  required  to  publish  a  notice  or  a  copy  of 
the  citation  in  the  state  paper,  if  there  be  a  contest  as  to  which  is 
the  rightful  paper,  it  will  be  sufficient  that  the  proprietors  of  the 
paper  in  which  it  is  published  were  acting  under  color  of  an  ap- 
pointment, and  exercising  the  functions  pertaining  to  the  official 
character  de  facto.  {  Wickwire  v.  Chapman,  15  Barb.  304,  per 
Johnson,  J.) 

By  the  act  of  1840,  p.  326,  §  2,  it  is  provided  that  where  a  will 
of  personal  estate  duly  executed  in  this  state  by  a  person  not  a 
resident  of  this  state,  shall  in  the  first  instance  have  been  duly 
admitted  to  probate  in  a  court  of  a  foreign  state  or  country,  letters 
testamentary  or  of  administration  with  the  will  annexed,  may  be 
issued  thereon  by  any  surrogate  having  jurisdiction,  upon  the  pro- 
duction of  a  duly  exemplified  or  authenticated  copy  of  such  will, 
under  the  seal  of  the  court  in  which  the  same  shall  have  been 
proved.     (3  R.  8.  147,  148,  §  54,  5th  ed.) 

This  statute  introduces  an  important  change  in  international 
jurisprudence.  While  it  is  generally  admitted  that  a  will  of  per- 
sonal estate  must,  in  order  to  pass  the  property,  be  executed  ac- 
cording to  the  law  of  the  place  of  the  testator's  domicil,  {Story's 
Conflict  of  Laws,  §  468,)  yet  the  executors  named  in  the  will 
cannot  intermeddle  with  or  sue  for  the  effects  of  the  testator  in 
another  state,  unless  the  will  be  proved  in  the  latter  state,  or  it  is 
permitted  by  some  law  of  the  state.  {Kerr  v.  Moon,  9  Wheat. 
565.)  Letters  testamentary  give  to  an  executor  no  authority  to 
sue  for  personal  estate  of  the  testator  out  of  the  jurisdiction  of 
the  state  by  which  they  are  granted.     {Id.)    Hence  the  statute 


GUARDIAN  AD  LITEM.  157 

of  1840  affords  a  short  and  convenient  mode,  of  authorizing  a  for- 
eign executor  to  pursue  the  property  of  the  testator  in  the  court3 
of  this  state. 

In  case  any  of  the  next  of  kin  are  under  the  age  of  twenty-one 
years,  we  have  seen  that  the  surrogate  is  to  appoint  a  special 
guardian,  for  such  as  have  no  general  guardian ;  and  this  before 
the  citation  issues.  (See  ante,  p.  152.)  This  latter  provision 
was  first  made  by  the  law  of  1837.  The  general  principles  with 
respect  to  proceedings  in  surrogates'  courts,  where  infants  were 
parties,  were  fully  explained  in  1833,  in  the  case  of  Killett  v. 
Rathbun,  (4  Paige,  106  et  seq.)  The  citation  of  a  minor,  the 
chancellor  observes,  "  should  be  served  in  the  presence  of  his  legal 
guardian,  or  in  the  presence  of  some  person  upon  whom  the 
actual  care  or  custod}'  of  the  minor  for  the  time  being  has  prop- 
erly devolved ;  and  evidence  of  the  service  of  the  citation  on  tho 
minor  merely,  is  not  sufficient,  especially  if  the  minor  is  so  young 
as  to  be  incapable  of  understanding  the  object  or  intent  of  such 
service.  {Cooper  v.  Green,  2  Add.  E.  R.  454.  Law  Pr.  E. 
Courts,  59.)  The  citation  in  such  case  should  direct  the  minor  to 
appear  according  to  law,  that  is,  by  his  guardian  lawfully  instituted. 
(Law's  Pr.  88.  1  Bro.  Civ.  and  Adm.  L.  454.)  And  if  a  minor 
who  is  cited  before  the  surrogate  has  no  general  guardian,  or  if  the 
general  guardian  has  an  interest  adverse  to  the  rights  of  the 
minor,  so  that  he  cannot  act  as  guardian  in  relation  to  that  matter, 
a  guardian  ad  litem  may  be  appointed  by  the  surrogate  to  protect 
the  rights  of  the  minor." 

It  is  a  power  incident  to  all  courts  to  appoint  guardians  ad  litem 
for  infants.  (Hargrave,  No.  TO,  to  Co.  Lyt.)  The  mode  in  which 
this  is  to  be  exercised  in  courts  of  record,  as  to  appointing  a  next 
friend  for  an  infant  plaintiff,  or  guardian  ad  litem  for  an  infant  de- 
fendant, is  prescribed  by  statute.     (Code  of  Procedure.) 

In  proceeding  to  prove  a  will  of  real  estate  before  the  surrogate, 
power  was  given  to  appoint  a  guardian  ad  litem  for  infant  heirs, 
who  have  no  general  guardian,  (2  R.  S.  57,)  but  this  was  altered 
in  1837,  and  the  appointment  of  a  guardian  ad  litem  for  infants 
was  placed  upon  the  same  footing,  whether  the  will  was  to  be 
proved  as  a  will  of  real  estate  or  only  admitted  to  probate.  (3  R.  S. 
147,  §  51,  5th  ed.) 


158  GUARDIAN"  AD  LITEM. 

On  an  application  before  the  surrogate  for  the  sale  of  real  estate 
of  the  deceased  for  the  payment  of  debts,  a  guardian  ad  litem  must 
be  appointed  for  the  infant  devisees  or  heirs  of  the  deceased,  who 
must  be  a  disinterested  freeholder.  If  any  of  the  minors  are  within 
the  county  of  the  surrogate,  they  are  required  to  be  personally 
served  with  notice  five  days  previously,  of  the  intention  to  apply 
for  such  appointment,  in  order  that  they  may  be  heard  in  the 
selection  of  the  guardian.  And  where  the  minor  is  under  fourteen 
years  of  age,  the  notice  must  be  served  on  the  person  in  whose 
custody  he  may  be,  or  with  whom  he  may  live,  or  on  such  relative 
as  the  surrogate  shall  designate,  instead  of  a  personal  service.  If 
he  has  a  general  guardian  in  the  county  of  the  surrogate,  such  gen- 
eral guardian  is  required  to  appear  and  take  care  of  the  interest  of 
the  minor,  and  in  that  case  no  special  guardian  need  be  appointed 
in  the  premises.     (3  B.  S.  187,  §  4  to  7,  5th  ed.) 

As  the  proceedings  for  recording  wills  of  the  real  estate  and  for 
the  sale  of  the  real  estate  of  deceased  persons  for  the  payment  of 
their  debts  did  not  belong  to  the  common  law  jurisdiction  of  the 
court,  a  legislative  provision  for  the  appointment  of  guardians  ad 
litem  was  deemed  necessary.  In  all  other  cases,  the  right  to  make 
the  appointment  is  an  incidental  power  of  the  court  at  common  law. 

If  the  heirs  or  next  of  kin,  or  either  of  them,  be  a  married  wo- 
man, the  proper  course  is  to  serve  the  citation  on  both  the  husband 
and  wife.  (Keeney  v.  Whitmarsh,  16  Barb.  141.  Bleecker  v. 
Lynch,  1  Bradf.  458.)  The  statute  does  not,  in  terms,  require 
such  service,  when  the  sole  interest  is  in  the  wife,  but  it  is  deemed 
most  prudent  to  do  so.     (Bibby  v.  Myer,  10  Paige,  220.) 

The  mode  of  making  the  appointment  of  a  guardian  ad  litem  for 
an  infant  complainant  should  be  on  petition  signed  by  the  minor,  if 
above  the  age  of  fourteen  years,  or  by  some  relative  in  his  behalf, 
if  under  that  age.  The  proposed  guardian  should  sign  a  written 
consent,  which  should  be  duly  proved  by  affidavit,  unless  signed  in 
open  court,  and  filed.  An  order  for  the  appointment  should  be 
thereupon  entered  in  the  minute  book,  and  the  appointment  made 
out,  under  the  seal  of  the  court.  This  appointment  should  regularly 
be  made  before  the  commencement  of  the  proceedings.  (Appen- 
dix, No.  5  to  8.) 


HOW  APPOINTED.  159 

For  an  infant  defendant,  in  cases  not  specially  regulated  by  stat- 
ute, the  guardian  ad  litem  is  usually  appointed  on  the  return  of  the 
citation.  If  it  is  made  on  the  application  of  the  minor,  in  obedience 
to  the  injunction  of  the  citation,  similar  proceedings  should  be 
adopted  to  those  described  above,  as  required  to  be  pursued  by  an 
infant  complainant.  But  if,  as  is  more  usual,  the  infant  omits  to 
appear,  the  court  then,  on  motion  of  the  complainant,  appoints 
some  discreet  person,  whose  interest  is  not  adverse  to  that  of  the 
minor,  and  who  will  consent  to  act.  (Knickerbacker  v.  DeFreest, 
2  Paige,  304.  In  the  matter  of  Frits,  Id.  374.)  The  practice 
should  be  assimilated  to  that  under  the  code  in  courts  of  record. 
The  provision  of  the  code  is  that  on  neglect  of  the  infant  to  apply 
for  the  appointment  of  a  guardian  ad  litem,  any  other  party  to  the 
action,  or  a  relative  or  friend  of  the  infant,  may  make  the  applica- 
tion after  notice  to  the  general  or  testamentary  guardian  of  such 
infant,  if  he  has  one  within  this  state,  if  he  has  none  then  to  the 
infant  himself,  if  over  fourteen  years  of  age  and  within  this  state, 
or  if  under  that  age  and  within  the  state,  to  the  person  with  whom 
the  infant  resides.     {Code  of  1852,  §  116,  sub.  2.) 

The  same  steps  are  taken  to  admit  a  will  to  probate,  on  the  ap- 
plication for  letters  of  administration  with  the  will  annexed,  as 
are  pursued  by  an  executor.  (For  the  pleadings  in  such  cases,  see 
part  1,  §  5,  on  the  pleadings  and  process  in  surrogates'  courts, 
ante.) 

We  shall  postpone  to  a  subsequent  section  the  subject  of  testi- 
mony in  testamentary  causes.  Assuming  that  the  testimony  taken 
before  the  surrogate  on  the  return  of  the  citation,  or  on  some  other 
day  to  which  the  cause  has  been  adjourned,  is  such  as  to  satisfy 
him  of  the  genuineness  and  validity  of  the  will,  he  then  admits  it 
to  probate,  by  an  order  entered  in  the  minute  book.  The  will  is 
then  to  be  recorded  in  the  book  of  wills,  and  the  testimony  taken 
in  the  book  of  minutes  ;  and  the  surrogate  is  required  to  enter  in 
his  minutes  the  decision  which  he  may  make  concerning  the  suffi- 
ciency of  the  proof  or  validity  of  any  will  which  may  be  offered 
for  probate ;  and  in  case  he  shall  decide  against  the  sufficiency  of 
the  proof  or  the  validity  of  any  such  will,  he  shall,  without  fee  or 
charge,  state  the  ground  upon  which  the  decision  is  made,  if  re- 


160  LETTERS  TESTAMENTARY— "WHEN  ISSUED. 

quired  by  either  party.  (Laws  of  1837,  p.  528,  §  21.  3  R.  S. 
150,  §  69,  5th  ed.)  A  certificate  of  the  proof  is  made  out,  annexed 
to  a  copy  of  the  will,  and  is  sealed  with  the  seal  of  the  court. 
This  certificate  is  recorded  with  the  will,  and  the  record,  both  of 
the  will  and  the  certificate,  are  certified  by  the  surrogate.  The 
copy  of  the  will,  and  the  proper  certificates  of  proof  under  the 
seal  of  the  court,  constitute  the  probate  of  the  will.  (See  ante, 
page  145,  and  the  forms  in  the  Appendix,  No.  21.)  These  proceed- 
ings do  not  authorize  the  executor  to  do  any  act.  They  are  the 
foundation  for  the  letters  testamentary.     (See  Appendix,  No.  22) 

Under  the  former  laws  of  this  state,  letters  testamentary  issued 
to  the  executor  immediately  upon  the  granting  of  probate,  on  the 
executor's  taking  the  oath  prescribed  by  law.  The  revised  statutes 
restrained  the  issuing  of  letters  testamentary  until  the  expiration 
of  thirty  days  after  probate,  to  enable  those  interested  in  the  estate 
to  file  objections  against  any  of  the  executors  named  in  the  will. 
(2  R.  S.  69,  §  2.)  The  law  of  1837,  §  22,  (3  R.  S.  154,  §  2,  5th 
ed.)  permitted  them  to  be  granted  at  any  time  after  the  will  should 
have  been  proved,  unless  an  affidavit  should  be  made  by  the  widow, 
legatee,  next  of  kin,  or  a  creditor  of  the  testator,  setting  forth 
that  such  person  intended  to  file  objections  against  the  granting 
of  such  letters  testamentary,  and  that  he  was  advised  and  believed 
that  there  was  just  and  substantial  objections  to  the  granting  of 
such  letters  to  the  executors  named  in  the  will,  or  some  or  one  of 
them.  Upon  filing  such  affidavit  Avith  the  surrogate  he  is  required 
to  stay  the  granting  of  letters  testamentary,  at  least  thirty  days, 
unless  the  matter  shall  be  sooner  disposed  of.  It  is  presumed 
that  this  period  of  thirty  days  is  to  be  computed  from  the  filing  of 
the  affidavit  and  not  from  the  date  of  the  probate,  if  they  occur  on 
different  days.     (Burwell  v.  Shaw,  2  Brad.  322.) 

Letters  testamentary  run  in  the  name  of  the  "people,  and  are 
tested  in  that  of  the  surrogate,  when  issued  by  him,  and  are  issued 
under  his  seal  of  office,  and  signed  by  him.  If  issued  by  any 
other  officer,  discharging  the  duties  of  the  office  of  surrogate,  they 
are  tested  in  the  name  of  such  officer.  If  issued  by  the  county 
judge,  or  district  attorney,  as  they  may  be  in  certain  cases  where 
the  surrogate  is  disqualified  to  act,  they  must  be  tested  in  the 


OATH  OF  EXECUTOR.  161 

name  of  such  officer,  and  issued  under  the  seal  of  the  county  court. 
(2  R.  S.  80,  §  55.    3  id.  167,  §  73,  5th  cd.    Laws  of  1847,  p.  329.) 

When  issued  by  the  surrogate,  they  are  required  to  be  recorded 
in  the  book  provided  for  that  purpose,  and  the  record  thereof  to 
be  duly  certified.  They  cannot  be  issued  until  the  executor  has 
taken  and  subscribed  an  oath  or  affirmation  before  the  surrogate, 
or  in  case  of  his  sickness  or  other  inability  to  attend  the  surro- 
gate, before  any  officer  authorized  to  administer  oaths,  that  he  will 
faithfully  and  honestly  discharge  the  duties  of  an  executor.  This 
oath  must  be  filed  with  the  surrogate.  (2  R.  S.  71,  §  13.)  The 
59th  section  of  the  act  of  1837,  p.  534,  permits  this  oath  to  be 
taken  in  all  cases,  not  only  before  the  surrogate,  but  also  by  a 
commissioner  of  deeds,  supreme  court  commissioner,  or  judge  of 
the  county  courts.  .  Since  the  office  of  supreme  court  commissioner 
has  been  abolished  by  the  constitution  of  1846,  it  is  presumed  it 
may  be  taken  by  any  officer  by  whom  the  functions  of  the  supreme 
court  commissioners  are  now  discharged.  (Hayner  v.  James,  17 
N.  Y.  Rep.  [3  Smith.}  316.)  In  Kings  county  the  clerk  or  clerks 
of  the  surrogate  of  that  county  are  vested  with  power  to  adminis- 
ter this  oath.  {Laws  of  1849,  p.  235.)  And  in  the  city  and  county 
of  New  York  the  same  authority  is  given  to  the  assistants  appointed 
by  the  surrogate.     (Laios  of  1850,  p.  384.) 

The  usual  time  for  taking  this  oath  is  immediately  preceding 
the  issuing  of  the  letters  testamentary.  It  is  presumed,  however, 
that  it  may  be  administered  at  any  time  after  the  will  has  been  ad- 
mitted to  probate,  if  no  objections  be  filed.  (For  form  of  oath, 
see  Appendix,  No.  19.) 

The  statute  provides  that  all  wills  whenever  proved  according 
to  law,  except  such  as  are  required  to  be  deposited,  shall,  after  being 
recorded,  be  returned  on  demand  to  the  person  who  delivered  the 
same  ;  or  in  case  of  his  death,  insanity  or  removal  from  the  state, 
to  any  devisee  named  in  such  will,  or  to  the  heirs  or  assigns  of 
such  devisee  ;  or,  if  the  same  relate  to  personal  estate  only,  to  any 
acting  executor  of  such  will,  or  administrator  with  the  will  annexed, 
or  to  a  legatee  named  therein.     (2  R.  8.  66,  §  54.) 

We  have  already  spoken  of  cases  arising  under  the  act  of  1840, 
(See  ante,  page  156,)  where  a  will  of  personal  estate,  duly  execu- 
21 


162  FOREIGN"  EXECUTOR. 

ted  within  this  state  by  a  person  not  a  resident  of  this  state,  shall 
have  been  duly  admitted  to  probate  in  a  court  of  a  foreign  state  or 
country,  and  have  shown  under  what  circumstances  the  surrogate 
having  jurisdiction,  may  issue  letters  testamentary  or  of  adminis- 
tration with  the  will  annexed  upon  the  production  of  a  duly  authen- 
ticated copy  of  such  will,  under  the  seal  of  the  court  in  which  it 
shall  have  been  proved.  But  this  statute  does  not  cover  the  whole 
ground.  The  act  of  1840  applies  only  to  the  will  of  non-residents, 
duly  executed  within  this  state. 

But  a  different  case  may  arise,  where  a  person  not  an  inhabitant 
of  this  state  shall  die  at  home,  leaving  assets  in  this  state.  In  such 
a  case  if  no  application  for  letters  of  administration  be  made  by  a 
relative  entitled  thereto,  and  legally  competent,  and  it  shall  appear 
that  letters  of  administration  on  the  same  estate,  or  letters  testa- 
mentary, have  been  granted  by  competent  authority,  in  any  other 
state  of  the  United  States,  then  our  statute  provides  that  the  per- 
son so  appointed,  on  producing  such  letters,  shall  be  entitled  to 
letters  of  administration  in  preference  to  creditors  or  any  other 
person  except  the  public  administrator  of  New  York.  (2  R.  13. 
75,  §  31.)  This  administration  is  granted  without  citation,  and  is 
doubtless  auxiliary  to  the  original  administration.  The  statute 
provides  only  for  the  case  of  persons  not  inhabitants  of  this  state, 
leaving  assets  in  this  state.  Should  such  person  die,  leaving  no 
assets  in  this  state,  and  assets,  after  his  death,  should  come  to  the 
state,  or  for  any  reason  the  obtaining  a  grant  of  administration,  or 
of  letters  testamentary  in  this  state  become  necessary,  the  foreign 
executor  or  administrator  must  proceed  as  at  common  law  to  obtain 
them.  Nor  does  the  statute  aid  any  other  executor  or  administra- 
tor, than  such  as  is  appointed  by  some  other  of  the  United  States. 
If  the  appointment  proceeds  from  a  foreign  government,  other  than 
one  of  the  United  States,  an  appointment  must  be  obtained  here, 
in  the  same  way  as  if  no  previous  appointment  had  been  made. 

It  has  been  repeatedly  decided  and  may  be  said  to  be  a  fixed 
rule,  that  the  executor  or  administrator  of  a  person  who  dies  in  a 
foreign  land  and  receives  his  appointment  from  a  foreign  tribunal, 
cannot  maintain  an  action  here  by  virtue  of  the  letters  testament- 
ary or  letters  of  administration  granted  to  him  abroad.  But  the 
appointment  of  the  foreign  tribunal  will  be  considered  sufficient 


WILL  OF  FOREIGNER.  163 

authority  for  the  proper  court  to  issue  an  ancillary  probate,  or  let- 
ters of  administration,  as  the  case  may  be.  (Femoicfc  v.  Sears, 
1  Cranch,  259.  Dixon's  Ex'rs  v.  Ramsay,  3  id.  319,  323.  Kerr 
v.  Moore,  9  Wheat.  565.  Morrell  v.  Dickey,  1  John.  Ch.  153.) 
The  rule  as  settled  in  England,  and  by  the  usage  of  all  civilized 
nations,  as  to  the  validity  of  wills  made  abroad,  and  the  succession 
and  distribution  of  the  real  and  personal  estate  of  foreigners,  has 
repeatedly  been  declared  to  constitute  a  part  of  the  municipal  juris- 
prudence of  this  country.     (Id.) 

The  rule  at  common  law  is  this  ;  if  a  will  be  made  in  a  foreign 
country  and  proved  there,  disposing  of  personal  property  in  this 
country,  the  executor  must  prove  the  will  here  also.  (Tourton  v. 
Flower,  3  P.  Wm.  3G9.)  So  if  the  testator  was  domiciled  in  Scot- 
land, and  left  assets  there  and  in  England,  the  will  is  proved  in 
the  first  instance  in  the  court  of  great  sessions  in  Scotland,  and  a 
copy  duly  authenticated  being  transmitted  to  England  it  is  proved 
in  the  ecclesiastical  court ;  and  deposited,  as  if  it  was  an  original 
will.     ( Toller,  70.) 

If  the  deceased  was  a  foreigner,  domiciled  abroad,  and  his  will 
is  brought  into  the  ecclesiastical  court  for  the  purpose  of  being  ad- 
mitted to  probate,  the  court  in  deciding  whether  it  is  a  valid  will 
or  not  is  guided  not  by  the  English  law,  but  by  the  law  of  the  country 
where  the  deceased  was  domiciled.  ( Curling  v.  Thornton,  2  Add. 
6,  21.) 

Upon  this  ground,  it  is  said  to  have  been  the  practice  of  the  pre- 
rogative court,  upon  the  production  of  an  exemplification  of  the  pro- 
bate granted  by  the  proper  court,  in  the  country  where  the  deceased 
died  domiciled,  for  the  prerogative  court  to  follow  the  grant  upon  the 
application  of  the  executor,  in  decreeing  its  own  probate.  (Larpent  v. 
Sindry,  1  Hagg.  382.  In  the  goods  of  Crimgan,  id.  548. )  The  same 
practice  is  adopted  in  this  state.  (Isham  v.  Gibbons,  1  Bradf.  75.) 

But  although  the  English  courts  thus  admit  that  the  question 
of  the  validity  of  the  will  of  a  foreigner,  domiciled  abroad,  ought 
to  be  determined  according  to  the  law  of  the  country  where  the 
testator  died  domiciled,  yet  they  have  questioned  whether  the  rule 
extends  to  the  case  of  a  British  subject  domiciled  in  a  foreign 
country.  In  the  case  of  Curling  v.  Thornton,  (supra,)  Sir  John 
Nicholl  expressed  his  doubts  whether  a  British  subject  was  en- 


164  EXPATRIATION. 

titled  so  far  " exuere  patriam"  as  to  select  a  foreign"  domicil  in 
complete  derogation  of  his  British  domicil,  and  thereby  to  render 
his  property  liable  to  distribution,  even  in  cases  of  intestacy,  ac- 
cording to  any  foreign  law ;  still  less  thereby  to  make  the  validity 
of  his  will  depend  on  its  conformity  to  that  law. 

At  all  events  it  is  clear  on  British  authority,  that  the  mere  resi- 
dence of  a  British  subject  in  a  foreign  country  at  the  time  of  mak- 
ing his  will  and  his  decease,  will  not  cause  its  validity  to  depend 
on  the  law  of  the  country  where  he  so  resided.  ( Curling  v.  Thorn- 
ton, supra.     AnstrutJier  v.  Chalmer,  2  Sims.  1.) 

The  subject  of  expatriation,  as  it  is  received  in  this  country,  is 
ably  reviewed  by  Chancellor  Kent  in  his  25th  lecture.  (2  Kent's 
Coin.  37  to  73.)  The  conclusion  which  he  reaches,  from  an  exam- 
ination of  the  American  adjudications,  is,'  that  a  citizen  cannot  re- 
nounce his  allegiance  to  the  United  States,  without  the  permission 
of  the  government ;  and  that  as  there  is  no  existing  legislative 
regulation  on  the  case,  the  rule  of  the  English  common  law  remains. 
It  follows,  therefore,  that  the  practice  of  the  ecclesiastical  courts 
on  this  subject,  so  far  as  it  is  not  altered  by  our  own  state,  affords 
the  only  safe  guide  in  cases  of  this  nature. 

The  legislature,  in  1830,  made  some  further  provisions  for  proving 
wills,  executed  by  persons  out  of  the  state,  according  to  the  laws  of 
the  country  in  which  they  are  made,  or  where  the  witnesses  reside 
out  of  the  state,  by  permitting  the  proof  to  be  taken  on  a  commission 
issued  out  of  the  supreme  court.  (Laics  of  1830,  pp.  388,  399, 
§§  63  to  69,  as  amended  by  the  Constitution  of  1846,  and  subse- 
quent legislation.  (3  R.  S.  152,  153,  5th  ed.)  The  practice 
in  these  cases  belongs  to  that  of  the  supreme  court,  rather  than 
the  surrogate.  Suffice  it  to  say,  that  the  will  is  to  be  established 
in  the  supreme  court,  and  transmitted  to  the  surrogate  of  the 
county  where  the  assets  of  the  deceased  are.  The  surrogate  is 
then  authorized  to  issue  letters  testamentary  or  of  administration 
with  the  will  annexed  on  the  will  so  proved ;  and  the  like  power, 
also,  is  conferred  upon  him  where  a  will  has  been  admitted  to  pro- 
bate in  a  foreign  country,  upon  the  production  of  a  duly  exempli- 
fied or  authenticated  copy  of  the  will,  under  the  seal  of  the  court 
in  which  it  shall  have  been  proved.  But  no  will  of  personal  es- 
tate, made  out  of  this  state,  by  a  person  not  being  a  citizen  of  this 


COMMISSION  TO  EXAMINE  WITNESS.  165 

state,  can  be  admitted  to  probate  under  the  foregoing  provisions, 
unless  such  will  shall  have  been  executed  according  to  the  laws  of 
the  state  or  country  in  which  the  same  was  made.  This  last 
enactment  is  in  conformity  to  the  English  decisions  in  the  cases 
cited.  Under  these  provisions,  the  chancellor  decided,  in  the  mat- 
ter of  Roberts'  will,  (8  Paige,  446,)  that  a  will  of  personal  prop- 
erty, executed  out  of  this  state,  by  a  person  domiciled  where  such 
will  was  executed,  and  who  continued  to  reside  there  until  his 
death,  did  not  require  the  attestation  of  two  witnesses  as  provided 
by  the  revised  statutes ;  and  that  it  could  not  be  admitted  to  pro- 
bate unless  executed  according  the  laws  of  the  state  where  it  was 
made.     {Id.  519.     Ex  parte  McCormdck,  2  Bradf.  169.) 

The  sections  we  have  been  considering  do  not  provide  for  the 
case  of  a  will  executed  according  to  the  law  of  the  testator's  domi- 
cile but  not  according  to  the  law  of  the  place  where  it  was  made. 
But  this  omission  is,  in  effect,  cured  by  the  77th  section  of  the  act 
of  1837,  p.  537,  which  authorizes  the  surrogate  to  issue  a  commis- 
sion to  take  the  testimony  of  a  foreign  witness  in  the  same  manner 
as  by  law  the  same  is  done  in  any  court  of  record.  This  author- 
ity is  given  on  any  proceedings  or  matters  in  controversy  before 
a  surrogate,  where  the  testimony  in  any  other  state  or  territory  of 
the  United  States,  or  any  foreign  place,  is  required  by  any  party 
to  such  proceedings  or  controversy.  It  is  doubtless  applicable  to 
the  case  of  the  proof  of  a  will,  whether  of  real  or  personal  proper- 
ty, and  will  enable  the  surrogate  to  dispense  with  the  aid  of  the 
supreme  court  in  such  cases.     (Isham  v.  Gibbons,  1  Bradf.  70.) 

If  a  will  be  in  a  foreign  language  the  probate  is  granted  of  a 
translation.     ( Toller,  72.) 

With  a  view  to  preserve  the  record  of  all  important  transactions 
in  the  surrogates'  courts,  it  is  wisely  provided  that  the  testimony 
taken  by  the  surrogate,  in  relation  to  the  proof  of  any  written  or 
unwritten  will,  and  in  any  controversy  relating  to  the  granting  of 
letters  testamentary  or  of  administration,  or  the  revoking  of  the 
same,  shall  be  reduced  to  writing,  and  entered  by  him  in  a  proper 
book,  to  be  preserved  as  part  of  the  books  of  his  office  :  if  taken 
by  any  county  judge  or  district  attorney,  the  same  shall  be  filed 
in  the  office  of  the  clerk  of  the  county.     (2  R.  8.  80,  §  57.) 


1G6  'WHAT  WILL  TO  BE  PROVED. 

The  surrogate  is  also  required  to  record  in  his  books,  to  be 
provided  by  him,  all  wills  proved  before  him,  and  all  letters  testa- 
mentary or  of  administration,  and  all  letters  appointing  a  collector, 
with  all  things  concerning  the  same.  The  records  of  such  wills 
and  letters,  and  the  transcripts  thereof,  duly  certified  by  the  sur- 
rogate having  the  custody  of  such  records,  under  his  seal  of  office, 
is  made  evidence  in  all  courts,  as  far  as  respects  any  personal  estate, 
in  the  same  manner  as  if  the  originals  were  produced  and  proved. 
{Id.  §  58.) 

A  copy  of  the  will  of  persons  not  inhabitants,  admitted  to  pro- 
bate, and  also  a  copy  of  letters  testamentary  granted  upon  such 
will,  are  required  to  be  transmitted  to  the  secretary  of  state  within 
ten  days  after  probate,  to  be  filed  in  his  office,  the  expense  of 
which  is  paid  by  the  state.     {Id.  59.) 

With  respect  to  the  instrument  of  which  probate  is  necessary, 
the  criterion  seems  to  be,  according  to  the  English  books,  whether 
it  be  testamentary  and  operates  on  personal  estate.  If  such  be  its 
character,  whatever  be  its  form,  it  should  be  admitted  to  probate 
in  the  proper  ecclesiastical  court,  otherwise  its  existence  cannot  be 
recognized  in  any  other  court,  either  of  law  or  equity.  (1  Wms. 
Ex'rs,  320,  Uh  Am.  ed.) 

If  it  barely  appoint  a  testamentary  guardian,  it  need  not  be 
proved.  {Gilliat  v.  Gilliat,  3  Phitt.  222.  2  Kent's  Com.  225, 
lecture  30.) 

Where  the  will  respects  land  alone,  and  does  not  dispose  of 
personal  property,  it  is  said  in  the  English  books,  that  it  ought 
not  to  be  proved  in  the  spiritual  court.  (1  Wms.  Ex'rs,  321.) 
Nor  is  it  necessary  there  to  have  it  admitted  to  probate,  to  entitle 
a  legatee  to  recover  his  legacy  out  of  the  real  estate.  ( Tucker 
v.  Phipps,  3  Atk.  361.) 

I  am  not  aware  that  the  precise  question  has  been  decided  in 
this  state,  under  the  revised  statutes.  It  is  believed,  however, 
that  all  wills  in  which  an  executor  is  nominated,  whether  relat- 
ing to  real  or  personal  estate,  should  be  admitted  to  probate. 
This  results  from  various  provisions  in  the  revised  statutes.  Thus, 
it  is  provided  that  an  executor,  not  named  in  letters  testamentary, 
cannot  execute  a  power  to  sell  real  estate.     He  is  superseded. 


WILLS  OF  REAL  ESTATE.  1G7 

( Off  den  v.  Smith,  2  Paige,  195.)  No  person,  it  has  been  seen,  can 
be  an  executor  de  son  tort;  therefore,  there  is  no  person  to  be  sued 
as  the  representative  of  the  deceased,  but  his  rightful  executor,  ad- 
ministrator or  heir.  The  rightful  executor  cannot  be  sued  till 
letters  testamentary  have  issued  to  him.  Nor  can  an  administra- 
tor be  appointed  while  there  is  an  executor  competent  to  act. 
The  creditor  must  wait  until  the  executor  renounces,  or  until  he 
has  been  summoned  to  appear  and  qualify,  and  by  reason  of  his 
default,  is  declared  to  have  renounced.     (2  R.  S.  70,  71.) 

A  nuncupative  will  must  be  admitted  to  probate.  But  this  spe- 
cies of  will  is  now  limited  only  to  wills  made  by  a  soldier  while 
in  actual  service,  or  by  a  mariner  while  at  sea.  (2  R.  S.  60. 
Hubbard  v.  Hubbard,  4  Seld.  196.  S.  C.  12  Barb.  148.  Ex 
parte  Thompson,  4  Bradf.  154.  Prince  v.  Hazleton,  20  John. 
502.)  The  preliminary  proceedings  to  prove  it  are  similar  to  those 
in  other  cases. 

Section  II. 

Of  the  proof  and  recording  of  wills  of  real  estate. 

The  importance  of  some  provision  for  recording  wills  of  real 
estate,  so  that  the  record  or  an  authenticated  copy  thereof  might 
be  evidence  in  a  contest  relative  to  the  estate  devised,  was  felt  at 
an  early  period,  in  this  state.  Thus,  by  the  9th  and  following 
sections  of  the  act  of  1786,  (1  Greenleaf  239,)  for  the  relief  of 
creditors  as  against  heirs,  devisees,  executors  and  administrators, 
and  for  proving  wills  respecting  real  estate  ;  it  was  enacted 
that  in  all  cases  where  any  real  estate  should  be  devised  by 
any  last  will  or  testament,  it  should  be  lawful  for  the  executor, 
or  any  other  person  interested  in  such  real  estate,  if  they  or  any 
of  them  should  think  proper,  to  cause  such  will  to  be  brought  before 
the  court  of  common  pleas  of  the  county  where  the  lands  were  sit- 
uated, to  be  proved.  And  the  court  was  authorized,  if  fifteen 
days'  notice  of  the  intention  of  proving  the  said  will  had  been 
given  to  the  heirs  of  the  testator,  to  cause  the  witnesses  to  the 
will  to  be  examined  in  open  court.  The  examinations  were  to  be 
in  writing ;  and  if  it  appeared  to  the  court  that  such  will  was 


168  RECORDING  WILLS  OF  REAL  ESTATE. 

duly  executed  according  to  law,  and  that  the  person  who  executed 
the  same  was,  at  the  time  of  executing  it,  of  full  age,  and  of  sound 
mind  and  memory  and  not  under  any  restraint,  then  the  said  court 
was  required  to  order  and  direct  the  clerk  of  the  court  to  record 
such  last  will  and  testament,  together  with  the  proof  thereof  so 
taken  in  the  said  court,  in  a  book  to  be  provided  by  the  clerk  for 
that  purpose. 

If  the  lands  or  real  estate  devised,  were  situated  in  several 
counties,  the  will  was  required  to  be  proved  in  the  supreme  court 
and  recorded  by  a  clerk  of  that  court.  The  record  of  the  will  was 
declared  to  be  as  good  and  effectual  in  all  cases,  as  the  original 
will  would  be  if  produced  and  proved. 

The  court  in  which  the  will  was  to  be  proved  was  clothed  with 
ample  power  to  compel  the  production  of  the  will,  and  the  attend- 
ance of  witnesses,  on  the  application  of  any  interested  person. 
But  doubts  were  early  entertained  whether  a  will  or  codicil,  when 
one  or  more  of  the  witnesses  to  the  same  were  dead,  or  did  not 
reside  in  the  state,  could  be  proved  and  recorded,  according  to  the 
act.  To  remove  these  doubts,  an  explanatory  act  was  passed  in 
1700,  (2  Greenl.  325,)  by  which  it  was  enacted  that  when  any 
witness  to  any  will  should  be  examined  in  any  court,  according  to 
the  former  act,  and  it  should  appear  to  the  same  court  that  the 
other  witness  or  witnesses  were  either  dead  or  did  not  reside  within 
this  state,  the  court  should  take,  in  open  court,  such  proof  of  the 
handwriting  of  the  testator,  or  of  the  witnesses  or  witness,  so  dead 
or  absent,  or  of  such  other  circumstances  as  would  be  proper  to 
prove  the  same  will  or  codicil  upon  a  trial  at  law ;  and  should 
cause  all  such  examinations  and  proofs  to  be  reduced  to  writing. 
And  the  court  was  further  required,  if  it  should  appear  that  such 
will  or  codicil  was  duly  executed  according  to  law,  that  the  testator 
was,  at  the  time  of  executing  the  same,  of  full  age,  and  of  sound 
mind  and  memory,  and  not  under  any  restraint,  to  direct  the  clerk 
of  the  same  court  to  record  the  said  will  and  proofs,  according  to 
the  direction  of  the  said  act.  The  same  section  also  provided  for 
taking  the  proof  of  a  will  when  all  the  witnesses  were  dead  or 
resided  out  of  the  state.  The  proofs  in  the  latter  case  were  to  be 
such  as  would  be  required  to  prove  the  will  on  a  trial  at  law,  and 
were  to  be  reduced  to  writing  and  recorded,  and  to  be  of  the  same 


RECORDING  WILLS  OF  REAL  ESTATE.  169 

force  and  effect  in  any  controversy  relative  to  said  will,  as  if  taken 
in  open  court,  on  such  trial,  provided  it  should  appear  that  the 
lands  in  question  had  been  uninterruptedly  held  under  the  said 
will  for  the  space  of  thirty  years.  The  will  was  required  to  be 
deposited  with  the  clerk,  who  was  authorized  to  give  copies  of  it ; 
but  it  was  not  to  be  recorded  unless  it  appeared  on  the  examina- 
tion aforesaid,  that  the  lands  claimed  under  it,  or  some  part  thereof, 
had  been  held  under  it  for  thirty  years  previous  thereto. 

The  foregoing  statutes  were  incorporated  into  one,  and  re-enacted 
in  1801 ;  but  the  period  of  thirty  years  was  reduced  to  twenty. 
(1  K.  6f  R.  178,  179.)  And  at  the  revision  of  the  laws  in  1813, 
it  was  again  retained,  with  no  essential  alteration  ;  except  by  the 
latter  act  a  transcript  of  the  record  of  such  will,  certified  by  the 
clerk,  under  the  seal  of  the  court  in  which  it  was  proved,  was 
made  as  effectual  in  all  cases  as  the  original  will  would  be  if  pro- 
duced and  proved ;  and  the  original  will,  with  a  certificate  of  the 
clerk  of  the  court,  under  the  seal  of  the  court,  of  the  proof  thereof 
endorsed  thereon,  was  also  made  evidence  without  further  proof. 
(1  R.  L.  of  1813,  p.  364.)  Neither  of  the  foregoing  statutes 
made  it  necessary  to  prove  a  will,  as  a  will  of  real  estate,  in  the 
supreme  court,  or  court  of  common  pleas.  It  was  left  entirely 
optional  with  the  parties  interested,  and  was  rarely  done,  except 
for  the  convenience  and  safety  of  the  devisee. 

By  the  revised  statutes  of  1830,  the  power  of  proving  and  re- 
cording a  will  of  real  estate  was  taken  from  the  supreme  court  and 
courts  of  common  pleas  and  transferred  to  the  surrogates'  courts 
of  the  proper  county.  (2  R.  S.  56.)  The  surrogates'  courts  thus 
acquired  exclusive  jurisdiction  of  this  matter,  except  in  the  case 
of  wills  lost  or  destroyed,  or  in  the  case  of  wills  executed  accord- 
ing to  the  law  of  this  state,  when  the  witnesses  to  the  same  reside 
out  of  the  state,  or  in  the  case  of  a  will  where  the  original  is  in 
the  possession  of  a  court  or  tribunal  of  justice  of  another  country. 
In  those  cases  the  will  might  be  proved  in  the  court  of  chancery, 
and  may  still  be  proved  in  the  supreme  court.  (3  R.  S.  151,  §  79. 
Id.  153,  5th  ed.)  Matter  of  Atkinson,  2  Paige,  214.  In  the  mat- 
ter of  Eastorts  will,  6  id.  183.  Bidkley  v.  Redmon,  2  Bradf. 
281.)  These  exceptions  are  of  rare  occurrence;  and  therefore, 
for  most  purposes,  the  surrogate's  court  has  the  exclusive  original 
22 


170  RECORDING  WILLS  OF  REAL  ESTATE. 

jurisdiction  in  relation  to  the  proving  of  both  wills  of  real  and 
wills  of  personal  estate. 

But  the  revised  statutes  contained  a  provision  founded  on  the 
presumption  in  favor  of  the  heirs  at  law,  which  makes  it  necessary 
for  the  devisee,  as  a  matter  of  safety,  to  record  the  will  under 
which  he  derives  title.  Thus  it  is  enacted  (1  R.  &  748,  749,  §  3 ; 
3  id.  38,  5th  ed.)  that  the  title  of  a  purchaser  in  good  faith,  and 
for  a  valuable  consideration,  from  the  heirs  at  law  of  any  person 
who  shall  have  died  seized  of  real  estate,  shall  not  be  defeated 
or  impaired  by  virtue  of  any  devise  made  by  such  person  of  the 
real  estate  so  purchased,  unless  the  will  or  codicil  containing  such 
devise  shall  have  been  duly  proved  as  a  will  of  real  estate,  and  re- 
corded in  the  office  of  the  surrogate  having  jurisdiction,  or  of  the 
register  of  the  court  of  chancery,  when  the  jurisdiction  shall  be- 
long to  that  court,  within  four  years  after  the  death  of  the  testa- 
tor, except  1.  Where  the  devisee  shall  have  been  within  the  age 
of  twenty-one  years,  or  insane,  or  imprisoned,  or  a  married  woman, 
or  out  of  the  state  at  the  time  of  the  death  of  such  testator ;  or 
2.  Where  it  shall  appear  that  the  will  or  codicil  containing  such 
devise  shall  have  been  eoncealed  by  the  heirs  of  such  testator,  or 
some  or  one  of  them ;  in  which  several  cases  the  limitations  contained 
in  this  section  shall  not  commence  until  after  the  expiration  of  one 
year  from  the  time  when  such  disability  shall  have  been  removed, 
or  such  will  or  codicil  shall  have  been  delivered  to  the  devisee  or 
his  representative,  or  to  the  proper  surrogate. 

Hence,  it  is  obvious  that  if  the  devisee  takes  under  the  will  a 
more  beneficial  estate  than  would  descend  to  him  as  heir,  and  more 
especially  if  the  devisee  is  not  an  heir  of  the  testator,  he  should, 
in  general,  have  the  will  proved  and  recorded  as  a  will  of  real  es- 
tate, as  well  to  preserve  the  evidence  of  his  title  as  to  prevent  any 
third  person  from  deriving  a  right  through  the  heirs  at  law. 

The  revised  statutes  of  1830  treated  an  application  for  the  proof 
of  a  will  of  real  estate,  with  a  view  to  its  being  recorded  in  the 
surrogate's  court,  as  a  different  proceeding  from  an  application  for 
probate  of  a  will  bequeathing  personal  estate.  In  the  former  case, 
the  jurisdiction  attached  where  any  real  estate  should  be  de- 
vised by  will ;  and  in  that  case  it  permitted  any  executor  or  devi- 
see named  in  the  will,  and  any  person  interested  in  such  estate, 


PARTIES  TO  THE  PROCEEDING.  171 

to  cause  the  -will  to  be  proved  before  the  surrogate  of  the  county 
to  whom  the  probate  of  the  will  of  the  testator  Avould  belong  in  re- 
spect to  personal  property.  (2  R.  iS.  57.)  But  the  statute  did 
not  say  by  whom  an  application  should  be  made  for  a  citation  with 
a  view  to  obtaining  probate  of  a  will  disposing  of  personal  prop- 
erty. It  left  that  as  it  existed  before,  which  we  have  seen  be- 
longed to  the  executor  named  in  the  will,  or  to  a  legatee.  (  Walsk 
v.  Ryan,  1  Bradf.  433.) 

Although  an  executor  or  devisee,  named  in  the  will,  might  ap- 
ply to  have  it  recorded  as  a  will  of  real  estate,  it  is  presumed  the 
executor  was  not  a  necessary  party  unless  he  took  some  interest 
as  such  under  the  will.  The  revised  statutes  also  contemplated 
that  a  will  proved  as  a  will  of  real  estate,  should  be  recorded  in  a 
different  book  from  a  will  admitted  to  probate  only.  The  proceed- 
ings were  between  different  parties,  and  for  different  objects.  The 
first  process  in  the  one  case  was  a  notice ;  that  in  the  other  a  cita- 
tion. And  it  might  happen,  that  the  next  of  kin  in  the  one  case 
were  a  different  class  of  persons  from  the  heirs  at  law  in  the  other, 
who  were  the  only  adverse  parties  to  the  proceeding. 

If  the  will  can  be  recorded  on  the  application  of  an  executor 
who  takes  no  interest  under  the  will,  he  must,  for  that  purpose, 
be  treated  as  a  trustee  for  the  parties  in  interest.  The  law  would 
not  permit  a  collusion  between  the  executor  and  anybody  else  to 
Avork  a  prejudice  to  the  real  parties  in  interest. 

It  was  the  policy  of  the  legislature,  and  one  of  the  objects  of  the 
act  of  1837,  (L.  o/1837,  p.  524 ;  3  R.  S.  146,  5th  ed.,)  to  assimi- 
late the  proceedings  to  record  a  will  of  real  estate  to  the  proceed- 
ings on'  obtaining  'probate  of  a  will  of  personal  property  alone. 
{Caw  v.  Robertson,  1  Seld.  129.)  Hence  the  preliminary  steps 
are  the  same  in  both  cases.  Both  are  commenced  by  a  citation. 
If  the  will  relates  exclusively  to  real  estate,  the  surrogate  is  to 
ascertain  by  proper  proof,  the  names  and  places  of  residence  of  the 
heirs  of  the  testator,  or  that  upon  diligent  inquiry  the  same  cannot 
be  ascertained.  He  need  not,  in  this  case,  inquire  as  to  the  widow 
and  next  of  kin  of  the  testator,  as  he  must  when  the  will  relates 
solely  to  the  personalty.  But  if  the  will  relates  both  to  real  and 
personal  estate,  he  is  then  required  to  ascertain  the  names  and 
places  of  residence  of  the  heirs,  widow  and  next  of  kin  of  the  testa- 


172  WINESSES  TO  BE  EXAMINED. 

tor,  or  that  upon  diligent  inquiry  the  same  cannot  be  found.  In 
other  respects  the  preliminary  proceedings  are  alike  in  both  cases, 
and  have  been  sufficiently  mentioned  in  the  preceding  section.  The 
service  of  the  citation  and  the  proofs  of  service  in  both  cases  are 
alike. 

On  receiving  due  proof  of  the  service  of  the  citation  upon  the 
proper  parties,  and  in  the  proper  manner,  the  surrogate  is  required 
to  cause  the  witnesses  to  be  examined  before  him,  and  the  proofs 
and  examinations  to  be  reduced  to  writing.  Two  at  least  of  the 
witnesses  to  the  will,  if  so  many  are  living  in  this  state,  and  of 
sound  mind,  and  are  not  disabled  by  age,  sickness  or  infirmity  from 
attending,  are  required  to  be  produced  and  examined,  and  the 
death,  absence,  insanity,  sickness  or  other  infirmity  of  any  of  them 
must  be  satisfactorily  shown  to  the  surrogate,  and  he  must  inquire 
particularly  into  the  facts  and  circumstances  before  establishing 
the  will  or  granting  letters  testamentary  or  of  administration 
thereof. 

It  is  further  provided  that  no  written  will  of  real  or  personal 
estate,  or  both,  should  be  deemed  proved  until  the  witnesses  to  the 
same,  residing  within  this  state  at  the  time  of  such  proof,  of  sound 
mind  and  competent  to  testify,  should  have  been  examined  pursu- 
ant to  law,  as  in  the  act  prescribed ;  and  in  all  cases  the  oath  of 
the  person  who  received  the  will  from  the  testator,  if  he  can  be 
produced,  together  with  the  oath  of  the  person  presenting  the 
same  for  probate,  stating  the  circumstances  of  the  execution,  the 
delivery  and  the  possession  thereof,  may  be  required  :  and  before 
recording  any  will  or  admitting  the  same  to  probate,  the  surrogate 
is  required  to  be  satisfied  of  its  genuineness  and  validity.  {L.  of 
1837,  p.  627,  §  IT.     3  B.  S.  149,  §  66,  5th  ed.) 

Another  evidence  that  the  legislature  intended,  as  far  as  prac- 
ticable, to  assimilate  the  proceedings  in  the  two  cases  is  derived 
from  the  19th  section  of  the  act,  which  provides  that  when  any  will 
shall  be  recorded  as  a  will  of  real  estate,  it  shall  not  be  necessary 
to  record  the  same  as  a  will  of  personal  estate. 

It  will  be  more  convenient  to  collect  in  the  next  section  the  testi- 
mony required  or  admissible  in  various  other  aspects  of  the  case. 
{See  p.  174.)     We  are  now  considering  the  usual  and  most  fre- 


EFFECT  OF  THE  RECORD.  173 

quent  cases,  where  all  the  subscribing  witnesses  appear  before  the 
surrogate. 

If  it  shall  appear  upon  the  proof  taken  that  the  will  was  duly 
executed,  that  the  testator  at  the  time  of  executing  it  was  in  all 
respects  competent  to  devise  real  estate,  and  not  under  restraint, 
the  said  will  and  the  proofs  and  examination  so  taken  are  required 
to  be  recorded  in  a  book  to  be  provided  by  the  surrogate,  and  the 
record  thereof  to  be  signed  and  certified  by  him.     (2  R.  S.  58,  §  14.) 

The  surrogate  is  then  required  to  endorse  a  certificate  of  such 
proof  on  the  original  will,  to  sign  the  same  and  attest  it  with  his 
seal  of  office.  The  will  may  then  be  read  in  evidence  without  fur- 
ther proof.  The  record  of  the  will,  made  as  aforesaid,  and  the  ex- 
emplification of  such  record  by  the  surrogate  in  whose  custody  the 
same  may  be,  is  required  to  be  received  in  evidence,  and  to  be  as 
effectual  in  all  cases  as  the  original  will  would  be  if  produced  and 
proved,  and  may  in  like  manner  be  repelled  by  contrary  proof. 
(Id.  §  15.) 

Before  recording  the  will  and  the  proofs,  an  order  or  decree  should 
be  entered  in  the  minutes  reciting  the  proceedings  and  the  proofs 
briefly,  and  declaring  the  valid  execution  of  the  will,  and  directing 
it,  together  with  the  proofs  and  examinations,  to  be  recorded  in  the 
book  provided  for  that  purpose.  If  the  surrogate  decides  against 
the  validity  of  the  will,  his  decision  should  in  like  manner  be  en- 
tered in  the  minutes. 

There  is,  however,  one  case  where  a  will  of  real  estate  may  be 
proved  before  the  surrogate,  and  yet  not  be  recorded  by  him. 
That  is  in  a  case  where  it  shall  appear  to  the  satisfaction  of  the 
surrogate  that  all  the  subscribing  witnesses  to  the  will  are  dead,  in- 
sane, or  reside  out  of  the  state.  In  such  a  case  the  surrogate  is 
required  to  take  and  receive  such  proof  of  the  handwriting  of  the 
testator,  and  of  either  or  all  of  the  subscribing  witnesses  to  the 
will,  and  of  such  other  facts  and  circumstances  as  would  be  proper 
to  prove  the  will  on  a  trial  at  law.  (§  16.)  These  proofs  are  to 
be  signed,  certified,  and  recorded  by  the  surrogate,  as  before  pro- 
vided, and  the  will  is  to  be  deposited  with  him.     (§  17.) 

The  statute  further  provides  that  the  record  of  the  proofs  and 
examinations  taken  in  pursuance  of  the  two  last  sections,  and  the 
exemplification  of  such  record  by  the  surrogate  in  whose  custody 


174  EVIDENCE  IN  TESTAMENTARY  CASES. 

it  may  be,  shall  be  received  in  evidence  upon  any  trial  or  contro- 
versy concerning  the  same  will,  after  it  shall  have  been  proved 
on  such  trial  or  controversy,  that  the  lands  in  question  therein 
have  been  uninterruptedly  held  under  such  will  for  the  space  of 
twenty  years  before  the  commencement  of  the  suit  in  which  such 
trial  or  controversy  shall  be  had ;  and  shall  be  of  the  same  force 
and  effect,  as  if  taken  in  open  court,  upon  such  trial,  or  in  such 
controversy.     {Id.  §  18.) 

The  proceedings,  under  this  branch  of  the  statute,  are  a  conven- 
ient mode  of  perpetuating  the  testimony  relative  to  the  due  publi- 
cation of  a  will  of  real  estate.  They  do  not,  it  would  seem,  operate 
as  notice  to  a  purchaser  from  the  heirs  of  the  person  dying  seized, 
because  the  will  is  not,  and  cannot  be  recorded.  The  holding  of 
the  premises  under  the  will  is  of  itself  notice.  The  will,  in  this 
case,  cannot  be  exemplified,  nor  can  a  copy  be  received  in 
evidence,  without  accounting  for  the  non-production  of  the  original. 

The  foregoing  provision  relates  only  to  wills  of  real  estate. 
There  is  a  corresponding  enactment  in  the  act  of  1837,  p.  528, 
§5  20  and  21,  in  relation  to  wills  of  personal  estate,  and  in  which 
if  the  surrogate  is  satisfied  with  the  proof,  he  may  grant  probate 
of  the  will,  and  record  it  as  a  will  of  personal  estate  only,  and  so 
as  to  affect  only  the  personal  estate  of  the  testator.  In  this  case, 
the  surrogate  is  to  enter  in  his  minutes  the  decision  which  he  may 
make  concerning  the  sufficiency  of  the  proof  or  validity  of  any  will 
which  may  be  offered  for  probate;  and  in  case  he  shall  decide 
against  the  sufficiency  of  the  proof,  or  the  validity  of  any  such  will, 
he  is  required,  without  charge,  to  state  the  ground  upon  which 
the  decision  is  made,  if  required  by  either  party.  The  object  of 
this  is  to  facilitate  the  re-examination  of  his  decree  in  case  of  an 
appeal  by  either  party.     (For  forms  see  Appendix,  5  et  seq.) 

Section  III. 

Of  evidence  in  testamentary  cases. 

The  New  York  code  of  procedure,  which  has  abrogated  the  rule 
with  respect  to  the  exclusion  of  witnesses  on  the  ground  of  inter- 
est, and  has  allowed  in  certain  cases,  the  parties  to  be  examined 
as  witnesses,  does  not  extend  to  surrogates'  courts.     The  questions 


EVIDENCE  IN  TESTAMENTARY  OASES.  175 

concerning  the  competency  of  witnesses,  and  the  various  other  mat- 
ters in  relation  to  testimony,  must  be  decided  in  surrogates' 
courts,  by  the  law  as  it  stood  before  the  adoption  of  the  code,  except 
where  the  practice  in  this  respect  has  been  modified  by  subsequent 
legislation.     (  Wilcox  v.  Smith,  26  Barb.  316.) 

In  general  it  may  be  stated,  that  the  same  rules  of  evidence  pre- 
vail in  surrogates'  courts,  as  governed,  before  the  code,  the  courts  of 
record  in  the  state,  in  analogous  cases.  Some  practices  which  in 
England  formerly  prevailed,  and  which,  perhaps,  now  prevail  in 
the  ecclesiastical  courts,  that  full  proof  required  the  testimony  of 
at  least  two  witnesses,  and  that  the  children  of  a  legatee  are 
incompetent  witnesses  to  support  the  will,  (Twaites  v.  Smith, 
1  P.  Wms.  10,)  are  not,  and  perhaps  never  were,  law  in  this 
state. 

The  nature  of  the  proof  in  testamentary  cases,  and  the  number 
of  witnesses  to  wills,  are  regulated  by  statute.  The  provisions  of 
the  law  for  proving  wills  where  all  the  subscribing  witnesses  are 
dead,  by  permitting  the  surrogate  to  take  such  proof  of  the  hand- 
writing of  the  testator  and  of  either  or  all  of  the  attesting  wit- 
nesses to  the  will,  and  of  such  other  facts  and  circumstances  as 
would  be  proper  to  prove  the  will  on  a  trial  at  law,  contain  a  clear 
intimation,  that  the  rules  of  evidence  in  courts  of  law  are  to  gov- 
ern surrogates'  courts  as  well  as  courts  of  record. 

The  revised  statutes  assume  that  the  rule  as  to  competency  and 
credit  of  a  witness  is  the  same  in  all  our  courts.  Hence  it  is 
provided,  that  if  there  be  a  beneficial  devise,  legacy,  interest  or  ap- 
pointment of  any  real  or  personal  estate  to  a  person  who  is  a  subscrib- 
ing witness  to  the  execution  of  the  will,  and  the  will  cannot  be  proved 
without  the  testimony  of  such  witness,  the  said  devise,  legacy, 
interest  or  appointment  shall  be  void  so  far  only  as  concerns 
such  witness,  or  any  claiming  under  him ;  and  such  person  is 
made  a  competent  witness,  and  compellable  to  testify  respecting 
the  execution  of  the  said  will,  in  like  manner  as  if  no  such  devise 
or  bequest  had  been  made.  (2  R.  S.  65,  §  50.)  But  the  subse- 
quent section  saves  to  the  witness  such  share  of  the  testator's 
estate  as  he  would  have  been  entitled  to  in  case  the  will  was  not 
established,  not  exceeding  the  value  of  the  devise  or  bequest  made 
to  him  in  the  will,  and  allows  him  to  recover  it  of  the  devisees  or 


17G  EVIDENCE  IN  TESTAMENTARY  CASES. 

legatees  named  in  the  will,  in  proportion  to  and  out  of  the  parts 
devised  and  bequeathed  to  them. 

Under  this  statute  it  has  been  decided  by  the  court  of  appeals, 
that  where  there  are  three  subscribing  witnesses  to  the  execution 
of  a  will,  to  each  of  whom  a  legacy  or  beneficial  interest  is  given, 
and  the  will  is  satisfactorily  proved  before  the  surrogate  by  the 
oaths  of  two  of  the  witnesses,  (the  probate  not  being  contested, 
and  the  third  witness  not  sworn,)  such  third  witness,  after  the  time 
for  appealing  from  the  surrogate's  decree  establishing  the  will  hav- 
ing expired,  is  entitled  to  the  legacy  given  him  by  the  will.  ( Caw 
v.  Robertson,  1  Seld.  125,  reversing  S.  C.  3  Barb.  S.  C.  R.  401.) 

A  party  wishing  to  object  to  the  competency  of  a  witness  before 
the  surrogate,  must  make  the  objection  in  due  time,  or  he  will  not 
be  permitted  to  raise  it  in  the  appellate  court.  (McDonough  v. 
Loughlin,  20  Barb.  238.) 

The  question  has  sometimes  been  agitated,  whether  a  party 
named  in  a  will  as  executor  can  also  be  a  subscribing  witness  to 
the  will,  and  be  competent  to  prove  it  before  the  surrogate  without 
renouncing  the  appointment.  After  renouncing,  though  he  still 
has  the  right  to  retract,  he  is  held  to  be  competent.  (Burrett  v. 
Silliman,  3  Kernan,  93,  reversing  S.  C.  16  Barb.  199.)  The 
bare  naked  nomination  of  an  executor  in  the  will,  unaccompanied 
by  any  beneficial  bequest  or  devise,  does  not,  it  seems,  disqualify 
the  party  so  nominated  from  being  a  subscribing  witness,  and 
competent  to  establish  the  execution  of  the  instrument  before  the 
surrogate,  {McDonough  v.  Loughlin,  20  Barb.  238,)  although 
a  contrary  opinion  was  expressed  with  hesitation  by  the  supreme 
court,  in  Burrett  v.  Silliman,  (supra,)  which  latter  case  has  since 
been  reversed.    .(Supra.) 

We  have  seen,  in  the  preceding  section,  that  two,  at  least,  of  the 
subscribing  witnesses  to  the  will,  if  so  many  are  living  in  this 
state,  and  are  not  incapacitated  from  attending,  must  be  produced 
and  examined,  and  the  death  or  other  disability  of  any  of  them 
must  be  shown  to  the  court,  in  order  to  let  in  secondary  evidence. 
It  may,  however,  happen,  as  in  Caw  v.  Robertson,  that  there  are 
more  than  two  subscribing  witnesses  to  the  will.  In  such  a  case, 
if  the  will  is  contested,  and  the  party  having  the  right  to  contest 
the  same  shall,  before  probate  is  made,  file  with  the  surrogate  a 


AGED,  SICK  OR  FOREIGN  WITNESS.  177 

request,  in  writing,  that  all  the  witnesses  to  such  will  shall  be  ex- 
amined, then  all  the  witnesses  to  such  will,  who  are  living  in  this 
state,  and  of  sound  mind,  and  who  are  not  disabled  from  age,  sick- 
ness or  infirmity,  from  attending,  are  required  to  be  produced  and 
examined  ;  and  the  death,  absence,  insanity,  sickness,  or  other  in- 
firmity of  any  of  them,  shall  be  satisfactorily  shown  to  the  surro- 
gate taking  such  proof.  {Laws  of  1837,  p.  526,  §  11.  3  R.  S. 
148,  §  57,  5th  ed.) 

This  section  contemplates  the  production  of  the  witness  beforo 
tho  surrogate.  But  it  may  well  happen  that  an  aged,  sick  or  inr 
firm  witness,  may  be  competent  to  be  examined,  but  unable  to  at- 
tend before  the  surrogate  at  a  distance  from  his  residence.  Pro- 
vision is  made  for  such  a  case,  where  the  witness  resides  in  the 
county  of  the  surrogate,  by  requiring  the  surrogate  to  proceed  to 
the  residence  of  the  witness,  and  there,  in  the  presence  of  such 
persons  as  may  choose  to  attend,  proceed  to  the  examination  in  the 
same  manner,  and  with  the  like  effect,  as  though  the  witness  had 
attended  and  been  examined  before  the  surrogate  on  the  return  of 
the  citation.     {Id.  §  58.) 

This  applies  only  to  cases  where  the  witness  resides  in  the  same 
county  with  the  surrogate.  It  may  well  happen  that  one  or  moro 
of  the  aged,  sick  or  infirm  witnesses,  may  reside  in  another  county 
in  this  state,  and  their  atendance  cannot,  probably,  be  procured  be- 
fore the  surrogate.  In  such  a  case  he  may  adjourn  the  proceed- 
ings to  some  future  day,  and  direct  the  witness  to  be  examined, 
before  the  surrogate  of  the  county  where  the  witness  resides  ;  and 
it  is  made  the  duty  of  that  surrogate  to  take  the  examination  and 
return  it,  under  the  seal  of  his  court,  to  the  surrogate  making  the 
order.  The  original  surrogate  is  required  to  act  upon  this  deposi- 
tion, and  the  other  testimony  in  the  case,  and  thus  determine  on 
the  sufficiency  of  the  proof  of  such  will.  The  statute  makes  am- 
ple provision  for  notice  to  the  parties,  and  authorizes,  in  effect,  the 
foreign  surrogate  to  attend  at  the  residence  of  the  infirm  Avitness, 
if  he  cannot  conveniently  be  brought  before  him  at  his  office.  ('S'ee 
the  sections  at  large,  Laws  of  1837,  p.  52G,  §§  12  to  16.  3  R.  S. 
148,  149,  Uh  ed.) 

The  foregoing  provisions  relate  only  to  the  subscribing1  witnesses 
to  the  will.     But  it  is  obvious  that  in  the  case  of  contest  relativo 

23 


178  FOREIGN  WITNESSES. 

to  the  validity  of  a  will,  other  aged,  sick  or  infirm  witnesses  may 
be  wanted  by  one  party  or  the  other,  and  whose  personal  attend- 
ance cannot  be  procured.  To  provide  for  such  cases  the  act  of  1841, 
(p.  105,  3  R.  S.  149,  5th  ed..)  applies  the  foregoing  principles  to  all 
witnesses^  whom  any  person  interested  in  the  proof  of  a  will  shall 
request  to  be  examined,  whether  such  witnesses  be  subscribing 
witnesses  to  such  will  or  not ;  provided  the  surrogate  who  has  the 
power  to  take  the  proof  of  such  will  is  satisfied,  that  the  testimony 
of  the  witness  so  requested  to  be  examined,  is  material.  A  sub- 
sequent section  makes  it  applicable  to  all  cases  of  the  proof  of  wills, 
whether  the  will  be  contested  or  not. 

The  application  to  examine  a  disabled  witness  cannot  probably 
be  made  until  the  return  of  the  citation.  No  witness  can  be  ex- 
amined under  the  act  unless  the  party  requesting  such  examina- 
tion shall  have  previously  given  notice  of  the  time  and  place  ap- 
pointed for  such  examination,  for  such  length  of  time  as  is  required 
in  cases  of  trials  of  issues  of  fact  in  the  supreme  court  to  all  the 
parties  who  appeared  before  the  surrogate  before  whom  the  pro- 
ceedings to  take  the  proof  of  any  such  will  sre  pending.  {Id.  §  65.) 
The  notice  should  be  fourteen  days,  that  being  the  time  prescribed 
for  notices  of  trial  in  the  supreme  court  when  the  act  of  1841  was 
passed.     (2  R.  S.  410,  §  7.) 

The  foregoing  provisions  cover  all  the  cases  which  will  usually 
arise  when  the  witness  sought  to  be  examined  resides  in  this  state. 
But  it  may  happen  as  well  in  proceedings  to  prove  a  will  as  in  other 
matters  in  controversy  before  a  surrogate,  that  the  testimony  of  a 
witness  in  some  other  state  or  territory  of  the  United  States,  or  in 
some  foreign  place,  will  be  required  by  one  or  other  of  the  parties. 
The  former  statutes  did  not  afford  adequate  relief  in  such  case. 
But  by  the  77th  section  of  the  act  of  1837,  page  537,  this  is  now  pro- 
vided for  by  empowering  the  surrogate  to  issue  a  commission  to 
take  such  testimony  in  the  same  manner  as  by  law  the  same  may 
be  done  in  courts  of  record.  The  proceedings  in  such  case  are 
pointed  out  in  the  revised  statutes.  (2  R.  S.  393  et  seq.  and  in 
books  of  practice  of  the  supreme  court.) 

Should  the  subscribing  witnesses,  instead  of  sustaining  the  will, 
depose  to  the  testator's  incapacity,  or  should  they  have  forgotten 
their  attestation,  the  will  may  nevertheless  be  proved  by  other  tes- 


OPINIONS  OF  WITNESSES.  179 

timony  and  admitted  to  probate,  and  the  same  principle  is  applica- 
ble to  the  proof  of  a  will  of  real  estate.  {Bull.  N.  P.  264.  Rice 
v.  Outfield,  2  /Strange,  1090.  Le  Breton  v.  Fletcher,  2  Hogg. 
558.  Jauncy  v.  Thorn,  2  Barb,  Ch.  40.  Nelson  v.  McGiffert, 
3  id.  158.  Dewey  v.  jDcioey,  1  Mefc.  349.  Peebles  v.  Case, 
2  Bradf.  226.     /ac/tso//.  v.  Christman,  4  Wend.  277.) 

There  is  no  court  in  which  evidence  as  to  testamentary  capacity 
is  so  frequently  agitated  as  in  the  courts  having  original  jurisdic- 
tion for  the  proof  of  wills  and  in  matters  of  intestacy.  In  this 
state  that  jurisdiction  belongs  to  the  surrogates'  courts.  It  is 
much  to  be  desired  that  the  rules  of  evidence  in  all  the  courts 
should  be  the  same,  when  they  relate  to  the  like  subject  matter. 
And  it  is  believed  that  when  the  cases  come  to  be  examined,  that 
there  is  no  substantial  diversity  among  them. 

The  general  rule  of  evidence  is  undeniable,  that  witnesses  must 
speak  to  facts  within  their  knowledge,  and  that  mere  opinions  are 
not  admissible.  {Culver  v.  Haslam,  7  Barb.  321.  1  Greenl.  Ev. 
§  440.  1  Phil.  290.)  There  are,  however,  numerous  exceptions 
to  the  rule,  most  of  which  are  collected  in  the  authorities  referred 
to.  It  is  the  constant  practice  to  receive  in  evidence  the  witness' 
belief  of  the  identy  of  a  person,  or  that  the  handwriting  in  question 
is  or  is  not  that  of  a  particular  individual,  provided  he  has  any 
knowledge  of  the  person  in  the  one  case,  and  of  the  handwriting  in 
the  other.  On  questions  of  science,  skill  or  trade,  or  others  of  the 
like  kind,  persons  of  skill,  sometimes  called  experts,  may  not  only 
testify  to  facts,  but  are  permitted  also  to  give  their  opinions  in 
evidence. 

The  important  question  is  not  whether  there  are  exceptions  to 
the  general  rule,  but  whether  the  testamentary  capacity  of  a  party 
is  the  subject  of  this  exception  in  any  possible  case. 

In  Poole  v.  Richardson,  (3  Mass.  330,)  the  supreme  judicial 
court  held  that  the  subscribing  witnesses  to  a  will  might  testify 
their  opinions  of  the  sanity  of  the  testator,  but  they  denied  this 
privilege  to  other  witnesses  who,  they  said,  were  permitted  to 
speak  only  to  facts.  The  distinction  between  the  subscribing 
witnesses  to  a  will,  and  other  witnesses  having  the  same  means  of 
knowledge,  rests  upon  no  sound  principle,  and  cannot  be  support- 


IgO  OPINION  OF  WITNESSES. 

cd.  In  Needham  v.  He,  (5  Pick.  510,)  the  distinction  between 
the  two  classes  of  witnesses  was  stated  to  be  that  the  subscribing 
witnesses  being  with  the  testator  when  he  signed  the  will  and  re- 
quired to  notice  the  state  of  his  mind,  might  lawfully  give  their 
opinions,  but  that  the  mere  opinions  of  other  witnesses  were  not 
competent  evidence,  and  were  not  entitled  to  any  weight,  further 
than  they  are  supported  by  the  facts  and  circumstances  proved  on 
the  trial.  Surely,  if  the  last  witnesses  had  the  same  means  of  knowl- 
edge as  the  first,  no  reason  is  perceived  why  they  should  be  pre- 
cluded, any  more  than  the  subscribing  witnesses,  from  giving  their 
opinion.  It  is  from  the  intimate  knowledge  which  the  subscrib- 
ing witnesses  are  supposed  to  have  of  the  testator,  and  from  the 
fact  that  their  attention  was  called  to  the  subject  at  the  time,  that 
their  opinions  have  been  held  to  be  competent.  Any  other  witness 
falling  within  the  same  category,  is  on  principle,  equally  entitled  to 
express  his  opinion,  in  connection  with  the  facts  disclosed.  If 
there  be  any  difference  between  them,  it  is  a  difference  in  degree, 
and  not  in  principle. 

In  Culver  v.  Haslam,  (supra,)  the  supreme  court  of  this  state, 
after  recognizing  the  general  rule,  that  witnesses  must  only  speak 
to  facts,  and  that  mere  opinions  are  inadmissible  except  in  certain 
cases,  decided  that  on  a  question  of  mental  capacity  of  the  grant- 
or of  a  deed,  the  opinion  of  an  intimate  acquaintance,  not  a  medical 
man,  as  to  the  condition  of  the  grantor's  mind,  was  competent  when 
connected  with  facts  and  circumstances  within  his  knowledge,  and 
disclosed  by  him  in  his  testimony,  as  the  foundation  of  his  opin- 
ion. In  remarking  upon  this  species  of  evidence,  the  judge  who 
delivered  the  prevailing  opinion  said,  that  apart  from  the  diffi- 
culty of  restraining  a  witness  from  intermingling  his  opinions 
with  his  testimony,  in  questions  of  this  kind,  there  were  strong 
reasons  why  he  should  be  permitted  to  do  so,  when  he  discloses 
the  facts  and  circumstances,  within  his  own  knowledge,  upon  which 
they  are  founded.  Human  language  is  imperfect ;  and  it  is  often 
impossible  to  describe  in  an  intelligible  manner,  the  operations  of 
the  mind  of  another.  We  learn  its  condition  only  by  its  manifest- 
ations, and  these  are  indicated  not  alone  by  articulate  sounds,  but 
by  signs,  gestures,  conduct,  the  expression  of  the  countenance, 
and  the  whole  action  of  the  man.     It  is,  therefore,  the  necessity 


OPINION  OF  WITNESSES.  181 

of  the  case,  that  gives  rise  to  the  exception.  If  the  witness  could 
communicate  the  exact  impression  of  his  own  mind  on  the  subject, 
without  the  opinion,  there  would  be  no  need  of  the  opinion,  and 
indeed,  it  would  cease  to  be  competent. 

The  doctrine  of  the  court  in  Culver  v.  Haslam,  was  approved 
by  the  supreme  court  in  the  third  district.  (De  Witt  v.  Bar  let/, 
13  Barb.  550.)  But  this  latter  case  was  reversed  in  the  court  of 
appeals.  The  court  thought  that  the  opinions  of  witnesses,  other 
than  those  who  are  specially  qualified  by  scientific  knowledge  to 
judge  of  such  matters,  are  not  competent  evidence  of  the  sound- 
ness of  mind  of  a  testator  or  grantor  at  the  time  of  executing  the 
deed  or  will.  They  took  a  distinction  also  between  the  case  of  a 
subscribing  witness  to  a  will  or  deed,  holding  that  it  formed  an 
exception  to  the  general  rule,  and  admitting  that  the  opinions  of 
such  witnesses  were  admissible.    (De  Witt  v.  Barley,  5  Seld.  371.) 

The  case  of  De  Witt  v.  Barley,  {supra,)  went  back  to  another 
trial,  and  again  reached  the  court  of  appeals,  on  exceptions  to  the 
ruling  of  the  circuit  judge.  It  is  satisfactorily  shown  by  the  learned 
judge  of  the  court  of  appeals,  in  the  last  case,  that  the  former  decision 
in  the  same  case,  reported  5  Seld.  (supra,)  was  to  be  considered  au- 
thoritative only  for  the  doctrine,  that  upon  a  trial  involving  the  ques- 
tion of  the  mental  capacity  of  a  testator  or  grantor,  a  non-profession- 
al witness  cannot  be  asked  the  broad  question  whether  he  considered 
the  party  non  compos  mentis,  or,  which  is  the  same  thing,  inca- 
pable of  managing  his  affairs.  In  other  words,  the  opinion  can- 
not be  called  out  by  questions  in  such  a  form  as  to  involve  in  the 
answer  matter  of  laio  as  well  as  matter  of  fact.  The  court  con- 
sidered that  upon  an  issue  in  regard  to  the  mental  imbecility  of  a 
grantor,  the  opinions  of  witnesses  founded  upon  personal  obser- 
vation of  his  appearance  and  conduct  might  be  given  in  evidence. 
They  treated  such  cases  as  belonging  to  that  class  of  exceptions 
to  the  general  rule,  in  which  opinions  are  received  ex  necessitate, 
for  the  reason  that  the  minute  appearances  upon  which  they  de- 
pend cannot  be  so  perfectly  described  as  to  enable  a  jury  to  draw 
a  just  conclusion  from  them.  Questions  of  mental  imbecility,  they 
thought,  belonged  to  the  same  class  with  questions  of  identity, 
of  handwriting,  of  intoxication,  and  some  questions  of  value ;  and 
that  in  such  cases>  the  witness  must  state,  so  far  as  he  is  able, 


182  OPINION  OF  WITNESSES. 

the  facts  and  reasons  upon  which  his  conclusion  is  founded,  that 
the  court  and  jury  may  have  all  practicable  means  for  estimating 
the  accuracy  of  his  opinions.  (Do  Witt  v.  Barley,  3  Smith,  340  ; 
17  N.  Y.  Rep.  340.)  The  cases  on  this  subject,  on  both  sides  of 
the  question,  are  elaborately  reviewed  in  the  opinions  of  the  court 
to  which  reference  has  been  made,  and  need  not  be  repeated.  (See 
in  addition  10  How.  N.  Y.  Pr.  Rep.  289  ;  The  People  v.  East- 
wood, 4  Kern.  562  ;  14  N.  Y.  Rep.  562.) 

But  although  the  weight  of  judicial  authority  in  this  state  is  de- 
cidedly in  favor  of  the  competency  of  opinions  as  evidence,  under 
the  circumstances,  and  to  the  extent  stated,  yet  their  effect  upon 
the  mind  of  the  tribunal  to  which  they  are  addressed,  is  far  from 
being  controlling.  They  are  viewed  in  a  different  light  from  the 
testimony  of  a  witness  to  a  fact.  In  the  latter  case,  when  the 
witness  is  unimpeached,  the  facts  sworn  to  by  him  uncontradicted, 
either  directly  or  indirectly,  by  other  witnesses,  and  there  is  no 
intrinsic  improbability  in  the  relation  given  by  him,  neither  a 
court  or  jury  can,  in  the  exercise  of  a  sound  discretion,  disregard 
his  testimony.  (Newto?i  v.  Pope,  1  Cowen,  110.  1  C.  <Sf  H. 
Notes,  396.)  But  it  is  otherwise  with  regard  to  opinions.  These 
do  not  control  either  the  court  or  jury,  nor  is  there  any  danger 
that  either  will  be  misled  by  them,  when  the  reasons  for  them  are 
disclosed.  The  value  and  force  of  the  opinion  depend  on  the  gen- 
eral intelligence  of  the  witness,  the  grounds  on  which  it  is  based, 
the  opportunities  he  has  had  for  accurate  and  full  observation, 
and  his  entire  freedom  from  interest  and  bias.  {Culver  v.  Has- 
lam,  supra.)  They  may  sometimes  be  entitled  to  great  weight, 
and  at  others  to  none  at  all.  In  many  of  the  cases,  both  in  the 
English  reports  and  those  of  New  York,  the  decision  of  the  court 
in  granting  or  refusing  probate,  has  been  in  opposition  to  the 
opinions  of  the  witnesses,  and  upon  reasons  entirely  satisfactory. 
(See  remarks  of  Sir  John  Nicholl,  in  Kinleside  v.  Harrison, 
2  Phillm.  449  ;  Cartwright  v.  Cartwright,  1  id.  90  ;  Carroll 
v.  Norton,  3  Bradf.  291 ;  Stewart's  Executor  v.  Lispenard,  26 
Wend.  255  ;   Clark  v.  Fisher,  1  Paige,  171.) 

We  have  already,  in  a  preceding  part  of  this  work,  discussed 
various  questions  of  testamentary  capacity,  and  thus  anticipated 
many  questions  which  might  appropriately  be  treated  in  the  pres« 


ORDER  OF  PROOF— COSTS.  183 

ent  section.     But  to  avoid  repetition,  wc  abstain  from  a  further 
examination  of  those  cases. 

The  surrogate,  in  those  counties  where  he  is  not  furnished  with 
a  clerk  or  assistant,  is  his  own  examiner.  Like  the  courts  of 
common  law  jurisdiction,  he  has  the  power  to  direct  the  order  of 
proof,  and  the  mode  of  conducting  the  examination  of  witnesses. 
He  should  exercise  his  discretion,  in  this  matter,  in  such  a  manner 
as  to  advance  justice,  and  consult,  at  the  same  time,  the  rights 
and  convenience  of  the  parties  and  their  witnesses.  The  witness- 
es must  be  examined  in  open  court,  their  testimony  reduced  to 
writing,  and  subscribed  by  them.  It  must  be  recorded  in  the 
proper  book.  When  taken  by  the  county  judge  or  district  attor- 
ney, in  consequence  of  the  incapacity  of  the  surrogate,  it  is  to  be 
filed  in  the  office  of  the  county  clerk.  (2  R.  S.  57.  3  id.  167, 
§  75,  5th  ed.)  Whether  the  testimony  shall  be  taken  by  question 
and  answer,  rests,  it  is  believed,  in  the  discretion  of  the  surrogate. 

Under  the  constitution  of  1777,  and  before  the  adoption  of  the 
constitution  of  the  United  States,  a  provision  was  made  for  costs 
in  the  court  of  admiralty,  and  for  the  fees  of  advocates  and  proc- 
tors in  that  court.  (2  Greenl.  255.)  But  there  was  no  fee  bill 
for  the  court  of  probates  or  surrogates'  courts,  beyond  the  fees  al- 
lowed to  those  officers  for  specified  services.  {Id.  257.)  Although 
costs  were  given  by  the  ecclesiastical  courts,  in  England,  in  cases 
of  contest,  both  in  original  suits  and  on  appeal,  that  practice  was 
not  adopted  in  this  state,  (Shidtz  v.  Pulver,  3  Paige,  185. 
Reed  v.  Vatiderheyden,  5  Cowen,  719,)  and  the  court  of  probates 
expressly  decided  that  it  had  no  power  to  award  costs.  The  re- 
vised statutes  of  1830,  (2  R.  S.  223,  §  10,)  permitted  surrogates' 
courts,  in  all  cases  of  contests  before  them,  to  award  costs  to  the 
party  in  the  judgment  of  the  court  entitled  thereto,  to  be  paid 
either  by  the  party  personally,  or  out  of  the  estate  which  should 
be  the  subject  of  controversy.  But  those  statutes  did  not  pre- 
scribe a  tariff  of  fees,  and  it  was  sometimes  doubtful  by  what  rate 
charges  were  to  be  made.  The  act  of  1837,  §  70,  p.  536,  directs 
these  costs  to  be  taxed  at  the  same  rate  allowed  for  similar  ser- 
vices in  the  courts  of  common  pleas.  It  has  been  decided  by  the 
surrogate  of  New  York  that  the  fee  bill  of  the  common  pleas  then 


184  OF  ADMINISTRATION. 

in  force,  is  the  one  by  which  these  costs  are  still  to  be  taxed,  not- 
withstanding the  court  of  common  pleas  has  since  been  abolished, 
(  Western  v.  Romaine,  1  Bradf,  37.)  (For  form  of  the  testimony 
of  witnesses,  see  Appendix,  No.  13  and  14.) 


CHAPTER  VII. 

OF    ADMINISTRATION,    AND     THE    APPOINTMENT    OF 
ADMINISTRATORS. 

In  the  former  part  of  this  work  we  have  treated  of  wills,  their 
origin,  nature  and  incidents ;  of  the  appointment  of  executors,  of  the 
probate  of  wills  and  testaments,  and  of  various  matters  connected 
with  this  department  of  jurisprudence.  We  come  now  to  another 
branch  of  the  exclusive  original  jurisdiction  of  surrogates'  courts, 
namely,  its  jurisdiction  over  the  estates  of  deceased  persons  when 
there  is  no  executor  at  all,  or  none  capable  of  acting.  A  person 
who  makes  no  testamentary  disposition  of  his  personal  property  is 
said  to  die  intestate.  This  state  of  things  occasions  what  is  usually 
denominated  a  general  intestacy.  It  sometimes  happens,  however, 
that  the  deceased,  though  he  makes  a  will,  appoints  no  executor,  or 
else  the  appointment  wholly  or  partially  fails  ;  in  either  of  which 
events  he  is  said  to  die,  quasi  intestates.  (2  Inst.  397.)  We  shall 
treat  of  the  consequences  which  follow  either  of  these  events. 

We  do  not  deem  it  necessary  to  give  a  historical  sketch  of  the 
origin  of  administrations  in  England.  The  subject,  however  inter- 
esting and  instructive,  is  not  indispensable  to  a  correct  under- 
standing of  the  law  of  this  state.  It  will  be  found  sufficiently  at 
large  in  the  elementary  works  most  familiar  to  the  profession. 
(2  Bl.  Com.  494.  1  Wins.  Ex'rs,  329.)  With  us,  the  jurisdic- 
tion of  surrogates'  courts,  in  cases  of  intestacy,  and  the  general 
practice  in  the  appointment  of  administrators,  both  general  and 
special,  are  essentially  regulated  by  the  revised  statutes,  and  the 
subsequent  amendments.  But  it  will  aid  us  in  the  construction  of 
these  statutes  to  take  a  brief  survey  of  the  whole  subject  of  admin- 
istration as  it  existed  when  those  statutes  took  effect. 

At  common  law  the  subject  of  administration  was  divided  into 


OF  ADMINISTRATION.  185 

general,  special,  limited  and  temporary  administrations.  First.  A 
general  administration  was  where  the  power  of  collecting  and  final 
disposing  of  the  goods,  chattels  and  credits  of  the  intestate  was 
committed  to  a  person,  without  any  exception  or  reservation  ;  and 
without  restriction  as  to  the  power,  or  limitation  as  to  the  time  of 
continuance  of  the  authority.  It  is  this  kind  of  administration  that 
is  usually  intended  when  the  subject  is  mentioned  injudicial  pro- 
ceedings or  legislative  enactments.  Secondly.  A  special  admin- 
istration was  of  two  kinds.  (1.)  Administration  cum  testamento 
annexo,  which  usually  happened  in  one  of  three  ways  ;  (1,)  where 
the  person  appointed  executor  renounced ;  (2.)  where  he  died  be- 
fore the  testator,  or  from  any  cause  was  incapable  of  acting ;  and 
(3,)  where  the  sole  executor  died  after  he  had  commenced,  but  be- 
fore he  had  completed  the  administration  of  the  will. 

The  second  species  of  special  administration  was  termed  an  ad- 
ministration de  bonis jwn.  This  happened  where  an  administrator, 
having  partly  performed  his  administration,  died  leaving  it  unfin- 
ished ;  or  Avhen  an  executor  died  after  commencing,  and  before 
completing,  the  execution  of  the  will.  In  both  these  cases2  admin- 
istration of  the  goods,  chattels  and  credits  of  the  first  testator,  or 
intestate,  left  unadministered,  was  committed  to  a  party  entitled  ; 
and  in  the  latter  case  it  was  called  an  administration  cum  testa- 
mento  annexo,  de  bonis  non,  cj-c.  In  both  cases,  the  administra- 
tion was  unlimited  in  duration  ;  and  the  power  granted  was  co- 
extensive with  the  assets  left  unadministered.  Indeed,  both  a 
general  and  special  administration  terminated  only  with  the  life  of 
the  grantee,  and  extended  to  the  whole  estate  of  the  deceased. 

Third.  Limited  administrations  were  of  two  kinds,  (1.)  such  as 
were  confined  to  a  particular  extent  of  time  ;  and  (2,)  such  as  were 
confined  to  particular  subject  matter.  The  first  class  embraced 
an  administration  durante  minor  e  cat  ate.  This  occurred  (1st,) 
either  where  an  infant  was  sole  executor  named  in  a  will,  or 
(2d,)  where  he  was  the  next  of  kin  entitled  to  administration  on  an 
intestate's  estate.  In  both  cases,  at  common  law,  administration 
was  committed  to  his  guardian,  or  to  some  suitable  person,  till  the 
infant  became  of  age.  In  the  first  case  it  was  a  species  of  adminis- 
tration cum  testamento  annexo.  Second,  an  administration  pen- 
dente  lite  was  granted  in  case  of  a  controversy  in  the  spiritual  court 

24 


186  OF  ADMINISTRATION. 

concerning  the  right  of  administration  to  an  intestate.  Third.  An 
administration  durante  absentia,  and  was  granted  where  the  execu- 
tor named  in  the  will,  or  at  common  law,  where  the  next  of  kin  was 
out  of  the  kingdom. 

The  second  class  of  limited  administrations,  to  wit,  such  as  were 
confined  to  a  particular  subject  matter,  embraced  (1st.)  an  admin- 
istration cmierorum,  which  occurred  where  a,  feme  covert,  under 
a  power,  made  a  will,  bequeathing  part  of  her  property.  In  this 
case  a  limited  probate  was  granted  to  her  executor,  restraining  his 
authority  to  the  subject  embraced  in  the  power,  and  an  administra- 
tion of  the  other  goods  &c.  of  the  wife  was  granted  to  the  husband. 
(2d.)  This  species  of  administration  arose,  also,  where  for  any  reason 
the  court  deemed  it  for  the  interest  of  the  parties  concerned  to 
limit  the  authority  to  a  part  of  the  effects. 

Fourth.  There  were  a  variety  of  other  temporary  or  limited  ad- 
ministrations arising  from  the  limitation  of  tl\e  appointment  by  the 
testator  in  his  will,  or  from  the  happening  of  circumstances,  not 
embraced  in  either  of  the  preceding  heads.  Thus,  an  executor 
might  be  appointed  by  a  testator,  with  a  limitation  as  to  his  con- 
tinuance in  office,  and  a  restriction  as  to  his  power  over  the  estate. 
The  case  In  the  goods  of  Metcalf  (1  Add.  343,)  is  a  fit  illustration 
under  this  head.  In  that  case  the  testator  died  in  England  stating 
a  short  time  before  he  died,  that  he  left  a  will  in  India.  A  tem- 
porary administration  was  granted  till  the  will  could  be  produced. 
Here,  a  general  administration  could  not  have  been  granted,  be- 
cause it  could  not  be  sworn  that  he  died  intestate,  and  the  circum- 
stances did  not  bring  it  within  either  of  the  other  subdivisions. 

Fifth.  In  addition  to  the  above  the  ecclesiastical  court  of  Eng- 
land had  the  power  of  granting  letters  ad  colligendum,  or  to  ap- 
point a  collector  in  certain  cases.  (In  the  goods  of  Randall, 
2  Add.  232.)  This  might  be  granted  to  a  stranger  ;  and  it  con 
ferred  on  him  the  authority  merely  of  collecting  the  personal  prop- 
erty of  the  deceased,  giving  discharges  for  debts  due  the  intestate 
or  testator,  on  receiving  payment,  and  doing  what  might  be  neces- 
sary for  the  preservation  of  the  property.  He  had  no  power  to  bring 
suits.     And  his  power  in  other  respects  was  extremely  limited. 

Such  is  a  brief  epitome  of  the  law  on  this  subject,  anterior  to 
the  revised  statutes,  as  it  was  supposed  to  exist  in  England  and  in 


POWER  OF  SURROGATE.  187 

this  state.  The  common  law  was  the  law  here  except  as  modified 
by  legislation.  A  general  knowledge  of  it  is  essential  to  a  full 
comprehension  of  the  changes  which  have  been  subsequently 
made.  The  common  law  is  still  the  rule  where  no  other  law  has 
intervened  to  change  it.  We  are  now  in  circumstances  to  consider 
the  existing  state  of  the  law  on  this  subject. 

Section  I. 

To  the  surrogate  of  which  county  must  application  be  made  for 
letters  of  administration,  and  lohat  may  be  done  by  the  admin- 
istrator before  the  grant. 

We  have  already  defined  the  general  jurisdiction  of  surrogates' 
courts,  (see  ante,  part  1,  §  3,)  and  inserted  the  section  of  the 
statute  by  which  it  is  conferred.  Among  his  powers,  it  will  be 
seen,  is  that  of  granting  letters  of  administration.  But  this 
does  not  direct  the  inquirer  to  the  particular  surrogate  before 
whom,  in  a  given  case,  the  application  should  be  made.  This  is 
pointed  out  by  another  statute,  which  declares  that  the  surrogate 
of  each  county  shall  have  sole  and  exclusive  power,  within  his 
county,  to  grant  letters  of  administration  of  the  goods,  chattels  and 
credits,  of  persons  dying  intestate,  in  the  following  cases  : 

1.  Where  an  intestate,  at  or  immediately  previous  to  his 
death,  was  an  inhabitant  of  the  county  of  such  surrogate,  in  what- 
ever place  such  death  may  have  happened. 

2.  Where  an  intestate,  not  being  an  inhabitant  of  this  state, 
shall  die  in  the  county  of  such  surrogate,  leaving  assets  therein. 

3.  Where  an  intestate,  not  being  an  inhabitant  of  this  state, 
shall  die  out  of  the  state,  leaving  assets  in  the  county  of  such  sur- 
rogate, and  in  no  other  county. 

4.  Where  an  intestate,  not  being  an  inhabitant  of  this  state, 
s  halldie  out  of  the  state,  not  leaving  assets  therein,  but  assets  of 
such  intestate  shall  thereafter  come  into  the  county  of  such  sur- 
rogate.    (2  R.  S.  73,  §  23.     3  id.  158,  §  23,  5th  ed.) 

Should  a  non-inhabitant  die  out  of  the  state,  leaving  assets  in 
several  counties,  or  assets  of  such  non-inhabitant  should,  after  his 
death,  come  into  several  counties,  the  surrogate  of  cither  county 
has  jurisdiction  to  grant  letters  of  administration  in  such  a  case ; 


188  PERSONS   TO  BE  APPOINTED. 

but  the  surrogate  who  first  grants  the  letters  acquires  thereby  the 
sole  and  exclusive  jurisdiction  over  such  estate,  and  is  vested  with 
all  the  powers  incidental  thereto.  (2  R.  S.  73,  §  24.  3  id.  158, 
5th  ed.) 

The  foregoing  statutory  regulations  apply  only  to  cases  of  intes- 
tacy, and  have  in  view  the  granting  of  general  administration. 
They  embrace  nearly  all  the  cases  which  ordinarily  occur.  There  are 
some,  however,  which  are  not  covered  by  them ;  but  as  the  stat- 
utes, since  1837,  do  not  contain  any  prohibition  to  exercise  juris- 
diction in  cases  not  provided  for,  it  is  presumed  that  the  common 
law  remains  with  respect  to  such  cases.  The  statute  regulates 
the  jurisdiction,  as  far  as  it  goes,  in  the  particular  instances  spe- 
cified.    (Kohler  v.  Knapp,  1  Bradf.  241.) 

Though,  in  general,  a  person  entitled  to  letters  of  administra- 
tion, can  do  no  act  to  bind  the  estate  before  they  are  granted,  yet 
it  was  held  in  Priest  v.  Watki?is,  (2  Hill,  225,)  that  where  a  note 
belonging  to  the  estate  of  an  intestate  was  paid  to  his  widow,  who 
subsequently  united  with  another  in  taking  out  letters  of  adminis- 
tration, and  they  then  brought  an  action  upon  the  note  in  their 
representative  capacity,  that  the  letters  related  back  to  the  time 
of  the  intestate's  death,  and  thus  legalized  the  payment  to  the 
widow.     [Rattoon  v.  Overacker,  8  Johns.  126,  S.  P.) 

Section  II. 

Of  the  ])ersons  to  whom  general  administration  is  to  be  grant- 
ed in  cases  of  total  intestacy,  and  herein  of  those  who  are  inca- 
j)acitaled  to  become  snch  administrators. 

It  is  stated  in  the  English  books  of  authority,  that  the  jurisdic- 
tion of  the  ecclesiastical  courts  in  regard  to  general  administra- 
tion in  the  case  of  a  total  intestacy,  is  regulated  by  the  statutes, 
31  Edward  3,  ch.  11,  and  25  Henry  8,  ch.  5,  §  3.  By  the  former 
of  these  statutes,  the  ordinary  was  directed  "  to  depute  the  next 
and  most  lawful  friends  of  the  deceased  person,  intestate,  to  ad- 
minister his  goods,"  and  by  the  latter,  "  to  grant  administration  to 
the  widow  of  the  deceased,  or  to  the  next  of  kin,  or  to  both,  as  by 
the  discretion  of  the  same  ordinary  should  be  thought  good."     The 


PERSONS  TO  BE  APPOINTED.  189 

same  statute  gives  him  power,  in  case  several  of  the  same  degree 
of  kindred  apply  for  letters,  to  select  either  at  his  discretion. 
(1  Wms.  Eafrs,  336.  Toller,  83.  2  Kent,  409.  And  see  ante, 
Part  1.)  The  statutes  above  referred  to  have  doubtless  been  the 
basis  of  the  legislation  on  the  subject  in  this  country,  and  certain 
civil  tribunals  have  been  substituted  for  the  ecclesiastical  courts. 
In  this  state,  the  act  of  Henry  8  was  substantially  copied  in  the 
laws  of  this  state,  in  force  at  the  time  of  the  revision  of  1830. 
{See  1  R.  L.  of  ISIS,  p.  445,  §  5.) 

But  by  the  revised  statutes  it  is  now  enacted  that  administra- 
tion, in  case  of  intestacy,  shall  be  granted  to  the  relatives  of  the 
deceased,  who  would  be  entitled  to  succeed  to  his  personal  estate, 
if  they  or  any  of  them  will  accept  the  same,  in  the  following  order  : 
First,  to  the  widow  ;  second,  to  the  children  ;  third,  to  the  father  ; 
fourth,  to  the  brothers  ;  fifth,  to  the  sisters  ;  sixth,  to  the  grand- 
children ;  seventh,  to  any  other  of  the  next  of  kin  who  would  be 
entitled  to  share  in  the  distribution  of  the  estate.  If  any  of  the 
persons  so  entitled  be  minors,  administration  shall  be  granted  to 
their  guardians  ;  if  none  of  the  said  relatives  or  guardians  will  ac- 
cept the  same,  then  to  the  creditors  of  the  deceased ;  and  the 
creditor  first  applying,  if  otherwise  competent,  shall  be  entitled  to 
a  preference  ;  if  no  creditor  apply,  then  to  any  other  person  or 
persons  legally  competent ;  but,  in  the  city  of  New  York,  the  pub- 
lic administrator  shall  have  preference  after  the  next  of  kin,  over 
creditors  and  all  other  persons  ;  and  in  the  other  counties  of  the 
state,  the  county  treasurer  shall  have  preference  next  after  credi- 
tors, over  all  other  persons.  And  in  case  of  a  married  woman,  dying 
intestate,  her  husband  shall  be  entitled  to  administration  in  pref- 
erence to  any  other  person,  as  hereinafter  provided.  (2  R.  S. 
74,  §  27.) 

Neither  of  the  English  statutes  referred  to  mention  the  hus- 
band by  name  as  a  person  to  whom  letters  of  administration 
should  be  granted  on  the  death  of  his  wife  intestate.  He  was, 
nevertheless,  entitled,  not  indeed  under  those  statutes,  but  by  his 
marital  right  at  the  common  law.  By  the  marriage,  the  husband 
acquires  an  absolute  title  to  all  the  personal  property  of  the  wife, 
which  she  had  in  possession  at  the  time  of  the  marriage.  This 
property  is,  at  common  law,  transferred  to  him  by  legal  operation. 


190  PERSONS  TO  BE  APPOINTED. 

It  belongs  to  him  absolutely,  without  any  liability  on  his  part  to 
account  for  it  to  her  next  of  kin.  if  he  survives  her,  or  to  the 
creditors  of  the  wife,  whose  claims  have  not  been  enforced  during 
the  continuance  of  the  marriage.  He  acquires  also,  by  the  mar- 
riage, a  title  to  all  the  choses  in  action  of  the  wife,  which  also  be- 
come his  if  reduced  to  possession,  or  disposed  of  by  him.  But  if 
he  dies  before  reducing  them  to  possession  or  disposing  of  them,  they 
will  go  to  the  wife  if  she  be  living,  and  if  she  be  dead,  they  will 
go  to  her  representatives.  {Reeves  Dom.  Rel.  1  to  4.  2  Kent's 
Com,  145.)  This  doctrine,  in  some  cases,  worked  great  hardship  to 
the  creditors  of  the  wife  whose  debts  were  not  enforced  during 
her  lifetime,  against  the  husband.  In  such  a  case,  however  great 
the  fortune  received  by  the  husband  on  account  of  the  marriage, 
he  ceased,  at  her  death,  from  being  liable  for  her  debts.     {Id.) 

The  New  York  statute,  it  has  been  seen,  expressly  gives  the 
preference  to  the  husband  over  any  other  person  claiming  a  right 
to  administer  on  the  estate  of  his  deceased  wife.  It  requires  him 
to  give  bonds,  like  other  persons,  and  makes  him  liable  as  admin- 
istrator, for  the  debts  of  his  wife,  only  to  the  extent  of  the  assets 
received.  If  he  omits  to  administer  he  is  presumed  to  have 
assets  in  his  hands  sufficient  to  satisfy  her  debts,  and  is  made 
liable  therefor.  If  he  dies,  leaving  aasets  of  his  wife  unadminis- 
tered,  those  assets  pass  to  his  executors  or  administrators,  as  part 
of  his  personal  estate,  but  are  made  liable  for  her  debts  to  her 
creditors,  in  preference  to  the  creditors  of  the  husband.  Should 
it  happen  that  letters  of  administration  on  the  estate  of  the  de- 
ceased wife  be  granted  to  any  other  person  than  her  husband,  by 
reason  of  his  neglect,  refusal  or  incompetency  to  take  the  same, 
such  administrator  is  required  to  acccount  for  and  pay  over  the 
assets  remaining  in  his  hands,  after  the  payment  of  debts,  to  the 
husband  or  his  personal  representatives.  (2  R.  tS.  75,  §§  29,  30. 
Shumway  v.  Cooper,  16  Barb.  556.  McCosker  v.  Golden, 
1  Bradf.  64.  67.  Lockwood  v.  Stockholm,  11  Paige,  92.  Ren- 
wick  v.  Renwick,  10  id.  419,  420.) 

Nor  is  this  right  of  the  husband  affected  by  the  acts  of  1848 
and  1849,  for  the  more  effectual  protection  of  the  property  of 
married  women.  {L.  of  1848,  p.  200.  Id.  of  1849,  p.  528. 
3  R.  S.  240,  bth  ed.)     The  act  of  1849  authorizes  a  married 


RICIIT  OF  nUSBA¥D  TO  ADMINISTER.  191 

female  to  take,  hold,  convey  and  devise  certain  real  or  personal 
property  in  the  same  manner  and  with  the  like  effect  as  if  she  were 
unmarried.  Both  the  statutes  are  silent  as  to  the  consequences  of 
her  death,  without  having  made  any  disposition  of  the  property.  It 
follows  that  the  marital  rights  of  the  husband,  in  such  cases,  are  not 
abridged,  but  remain  as  before  the  statutes  in  question  were  passed. 
{McCoskcr  v.  Golden,  supra.  iShumway  v.  Cooper,  siipra.)  If, 
therefore,  the  wife  dies  intestate,  the  husband  is  entitled  to  letters 
of  administration  of  her  estate,  in  the  same  manner  as  before  the 
enactment  of  those  laws. 

At  common  law,  though  a  marriage  be  voidable,  by  reason  of 
some  canonical  disability,  yet  the  husband  was  entitled  to  the 
administration  of  the  wife's  effects,  unless  sentence  of  nullity 
was  declared  before  his  death.  (Elliott  v.  Gurr,  2  Phill.  16.) 
But  where  the  marriage  was  absolutely  void,  ab  initio,  the  husband 
was  not  entitled  to  take  administration  ;  but  it  belonged  to  the  next 
of  kin  of  the  wife.  {Browning  v.  Ream,  2  Phill.  09.)  The  con- 
sequences which  result  from  a  divorce  for  adultery,  are  regulated  in 
this  state  by  statute.  (2  It.  S.  146,  §  46.)  If  the  wife  be  the  com- 
plainant and  the  decree  dissolving  the  marriage  be  pronounced 
against  the  husband,  he  being  the  guilty  party,  all  her  estate,  real 
and  persona],  is  reserved  to  her  as  her  sole  and  absolute  prop- 
erty. This  embraces  not  only  the  real  estate  which  she  owned 
in  her  own  right,  but  such  goods,  or  things  in  action,  which  were 
left  with  her  by  her  husband,  acquired  by  her  own  industry,  giv- 
en to  her  by  devise  or  otherwise,  or  to  which  she  might  be  entitled 
by  the  decease  of  any  relative  intestate.  The  husband's  life  inter- 
est as  tenant  by  the  curtesy  initiate  is  thus  discharged,  and  it 
would  seem  by  necessary  inference  that  his  right  to  administer  on 
her  estate,  should  she  die  after  such  divorce.  (Renioick  v.  Ren. 
wick,  10  Paige,  420.)  By  the  terms  of  the  statute,  she  is  enti- 
tled to  marry  again,  and  consequently,  the  second  or  subsequent 
husband  is  entitled  to  administer  on  her  estate,  if  he  survives  her. 

The  husband's  right  to  administer  on  the  estate  of  his  wife,  may 
be  barred  by  his  agreement,  empowering  her  to  make  a  general 
will,  disposing  of  her  whole  estate,  provided  she  exercises  the  right 
conferred  on  her  by  the  power.     (Rex  v.  Bettesworth,  2  Strange, 


192  WHEN  WIDOW  PREFERRED. 

1111.)  If,  however,  she  is  authorized  only  to  dispose  of  part  by 
will,  a  limited  probate  is  granted  to  her  executor,  and  a  cceterorum 
administration  to  the  husband  of  the  residue. 

Where  the  husband  and  wife  were  drowned  by  the  same  acci- 
dent, the  prerogative  court  held  that  the  presumption  was  that  both 
died  at  the  same  time.  There  being  nothing  to  show  that  the  hus- 
band survived  the  wife,  administration  was  granted  of  her  estate 
to  her  next  of  kin,  instead  of  the  next  of  kin  of  the  husband. 
(Satterthwaite  v.  Powell,  1  Curteis,  705.) 

In  case  of  the  death  of  the  husband  intestate,  we  have  seen  that 
by  our  statute,  the  widow,  if  not  in  other  respects  disqualified,  is 
entitled  to  the  preference  in  respect  to  the  granting  of  administra- 
tion on  his  estate.  In  general  this  claim  will  not  often  give  rise 
to  any  dispute  as  to  her  title  to  the  grant.  The  term  widow  im- 
plies that  she  has  once  been  the  lawful  wife  of  the  husband  whose 
estate  she  claims  to  administer.  Her  application  may  be  opposed 
by  other  parties  having  an  interest,  or  by  the  public  administrator, 
on  the  ground  that  she  had  never  been  the  wife  of  the  deceased. 

As  to  what  shall  be  sufficient  proof  of  a  marriage  in  such  a  case, 
it  has  been  held  by  the  surrogate  of  New  York,  that  where  the 
claimant  and  the  intestate  had  lived  together  as  man  and  wife  for 
four  years,  and  had  had  three  children  ;  where  there  was  open  pro- 
fession of  the  marital  relation,  general  reputation,  and  reception 
amongst  their  associates,  intimates  and  relatives,  as  husband  and 
wife,  that  notwithstanding  there  had  been  no  ceremonial  marriage, 
those  facts  raised  a  presumption  of  a  marriage  in  fact.  (Grotgen 
v.  Grotgen,  3  Bradf.  373.) 

In  that  case  the  surrogate  observed  that  if  the  parties  choose  to 
marry  by  private  agreement  without  the  interposition  of  a  magis- 
trate or  christian  minister,  the  law  does  not  forbid  it.  The  absence 
of  a  ceremony  does  not  invalidate  the  contract.  Its  existence  may 
be  established  by  the  kind  of  proof  applicable  to  all  contracts. 

In  the  celebrated  case  of  Cunning] tarn  v.  Bur  dell,  (4  Bradf. 
343^)  the  whole  doctrine  on  this  subject  was  most  thoroughly  ex- 
amined by  the  learned  surrogate  of  New  York.  In  that  case  the 
claimant  pretending  to  be  the  widow  of  Dr.  Harvey  Burdell,  who 
was  murdered  in  the  house  occupied  by  her  as  his  tenant,  applied 


EFFECT  OF  DIVORCE.  193 

for  letters  of  administration  on  his  estate.  This  was  opposed  by  the 
next  of  kin  of  the  deceased,  on  the  ground  that  no  marriage  had  in 
fact  been  celebrated  between  the  parties,  and  that  no  fact  in  rela- 
tion to  their  intercourse  had  been  disclosed  from  which  a  marriage 
could  be  presumed.  The  surrogate  conceded  that  by  the  law  of 
this  state  marriage  is  treated  as  a  civil  contract,  not  requiring 
legal  forms,  religious  solemnities,  or  any  special  mode  of  proof. 
But  he  thought  that  where,  as  in  that  case,  the  pretended  marriage 
contract  was  concealed  by  both  the  parties,  where  there  had  been 
no  cohabitation,  acknowledgment,  or  mark  of  the  relationship,  but 
the  parties  had  lived  as  single  persons,  and  the  pretended  con- 
tract was  first  announced  after  the  alleged  husband's  death,  that 
the  presumption,  instead  of  being  in  favor  of  marriage,  was  against 
it,  and  he  accordingly  denied  the  grant  of  administration  to  the 
claimant  as  widow,  but  awarded  it  to  the  next  of  kin.  (See  also 
Tummalty  v.  Tummalty,  3  Bradf.  369.) 

With  regard  to  the  effect  which  a  divorce,  or  separation  a  meti- 
sa  et  thoro,  under  the  New  York  statute  relative  to  divorces,  has 
upon  the  rights  of  the  widow  to  administration  of  the  estate  of  her 
deceased  husband,  it  is  believed  that  it  depends  upon  the  cause  of 
the  divorce  or  separation,  and  who  was  the  guilty  party.  On  the 
divorce  of  the  wife  for  adultery  committed  by  her,  she  forfeits  her 
right  to  dower  in  the  real  estate  of  her  husband,  and  to  a  distribu- 
tive share  of  his  personalty.  (2  R.  S.  146,  §  48.)  As  the  right 
to  administration  follows  the  right  of  property,  according  to  our 
statute,  it  follows  that  she  forfeits  also  the  right  of  administration 
upon  the  estate  of  the  divorced  husband,  should  she  survive  him. 
But  if  the  divorce  be  for  the  adultery  of  the  husband,  or  the  sep- 
aration a  mensa  et  thoro  be  for  the  misconduct  of  the  husband,  the 
wife  being  the  innocent  and  he  the  guilty  party,  a  different  con- 
sequence follows.  It  is  contrary  to  the  analogy  of  the  law  in  other 
cases,  to  permit  the  crime  of  one  party  to  work  a  forfeiture  of  the 
rights  of  another.  The  statute  does  not  annul  the  marriage  ab 
initio,  in  either  case,  nor  does  it  permit  the  guilty  party  to  marry 
again  during  the  lifetime  of  the  complainant.  The  divorce  is 
prospective  in  its  operation,  and  has  no  other  effect  on  the  mar- 
riage relation  than  such  as  is  declared  by  the  statute.  Hence  it 
follows,  that  on  such  divorce  ur  separation,  decreed  by  the  court  on 
25 


194  EFFECT  OF  DIVORCE. 

the  application  of  the  wife,  for  the  misconduct  of  the  husband,  she 
is  entitled,  in  case  he  subsequently  dies  intestate,  and  she  survives 
him,  to  dower  in  his  real  estate,  and  to  a  distributive  share  of  his 
personalty,  and  consequently  to  letters  of  administration  on  his 
estate.  ( Wait  v.  Wait,  4  Comst.  95,  overruling  same  case  in 
4  Barb.  192,  and  the  dictum  of  V.  C.  Mc  Conn,  in  Day  v. 
West,  2  Edw.  596  ;  and  to  the  same  effect  see  Burr  v.  Burr,  10 
Paige,  25,  6,  per  Willard,  V.  C. ;  opinion  of  the  Chancellor,  id.  31 
to  39,  affirming  decree  of  V.  C;  S.  C.  7  Hill,  207,  affirming 
both  decrees  by  court  of  errors.)  By  parity  of  reasoning,  should 
the  divorce  be  granted  to  the  husband  for  the  misconduct  of  the 
wife,  the  marital  rights  of  the  husband,  in  case  of  his  surviving 
his  wife,  would  be  unaffected  by  the  decree,  and  he  would  be  enti- 
tled to  administration  on  her  estate. 

But,  it  is  believed,  a  different  rule  would  prevail  should  the 
marriage  be  annulled  under  the  second  article  of  Title  1,  Part  2, 
chapter  8.  (2  R.  S>  142.  3  id.  233,  5th  ed.)  The  ground  on 
which  such  decree  is  based,  is  for  some  defect  that  renders  the  con- 
tract void  from  the  beginning.  After  a  sentence  of  nullity,  decreed 
by  the  proper  court,  neither  party  could  claim  to  administer  on 
the  estate  of  the  other,  as  a  surviving  husband  or  wife.  This  is 
according  to  the  English  doctrine  in  the  cases  which  have  been 
cited,  (supra,)  and  it  is  founded  in  wisdom  and  justice. 

Having  thus  briefly  considered  the  case  of  the  husband  and  of 
the  widow,  it  remains,  in  the  next  place,  that  we  should  inquire 
into  the  rights  of  the  next  of  kin.  The  statute  clearly  contem- 
plates that  the  next  of  kin,  who  are  entitled  to  claim  the  grant  of 
administration,  must  be  those  relatives  of  the  deceased  who  would 
be  entitled  to  succeed  to  his  personal  estate.  Those  persons  are 
described  in  the  statute  of  distributions.  (2  R.  8.  96,  §  75. 
3  id.  183,  §  82,  5th  ed.) 

When  called  upon  to  ascertain  who  are  the  heirs  of  the  de- 
ceased, with  a  view  to  cite  them  to  attend  the  proof  of  his  will  of 
real  estate,  in  order  that  it  may  be  recorded,  we  look  to  the  statute 
of  descents  to  ascertain  the  persons  the  law  denominates  heirs. 
1  R.  S.  750.  3  id.  40,  5th  ed.)  It  is  those  persons  alone  who  have  an 
interest  in  defeating  the  will,  if  it  makes  a  different  disposition  of 
the  estate  than  the  law  would  give  to  them  in  cases  of  intestacy. 


NEXT  OF  KIN.  195 

In  analogy  to  this  principle,  on  an  application  for  administra- 
tion by  the  next  of  kin,  under  our  statute,  we  are  to  look  for  the 
persons  who  sustain  that  relation,  at  the  time  of  the  testator's 
death,  as  well  as  those  who  would  be  entitled  to  a  distributive 
share  of  the  estate.  Both  circumstances  should  concur  in  or- 
der to  give  the  right  to  administration.  (Savage  v.  Blythe,  2 
Hagg.  App.  150.  Almcs  v.  Almes,  id.  155,  156.  The  Public 
Administrator  v.  Peters,  1  Bradf.  102.)  Hence,  a  party  who 
has  become  entitled  to  a  distributive  share  of  the  estate  by  reason 
of  the  death  of  another  who  was  a  next  of  kin  to  the  intestate  at 
the  time  of  his  death,  is  not  entitled  as  against  the  next  of  kin, 
who  has  an  interest. 

Consanguinity  is  defined  to  be  the  connection  or  relation  of  per- 
sons descended  from  a  common  ancestor.  It  is  either  lineal  or 
collateral. 

Lineal  consanguinity  is  that  which  subsists  between  persons  of 
whom  one  is  descended  in  a  direct  line  from  another,  as  between 
the  father,  grandfather,  great  grandfather,  and  so  upwards,  in  the 
direct  ascending  line  ;  or  between  the  father  and  his  son,  grandson, 
great  grandson,  and  so  downwards,  in  the  direct  descending  line. 
Every  generation  in  this  lineal  direct  consanguinity,  constitutes 
a  different  degree,  reckoning  either  upwards  or  downwards. 

Collateral  kindred  answer  to  the  same  description,  Collateral 
relations  agreeing  with  the  lineal  in  this  ;  that  they  descend  from 
the  same  stock,  or  ancestor  ;  but,  differing  in  this,  that  they  do 
not  descend  one  from  the  other.  Collateral  kinsmen  are  such  then, 
as  lineally  spring  from  one  and  the  same  ancestor,  who  is  the 
stirps  or  root,  the  stipes,  trunk  or  common  stock  from  whom  these 
relations  are  branched  out.  (2  Bl.  Com.  203,  204.  1  Wms. 
Exrs,  344.     Sweezey  v.  Willis,  1  Bradf.  498.) 

The  mode  of  calculating  the  degrees  in  the  collateral  line,  for  the 
purpose  of  ascertaining  who  are  the  next  of  kin,  so  as  to  be  entitled 
to  administration  at  common  law,  conforms,  it  has  been  said,  to 
that  of  the  civil  law,  and  is  as  follows  ;  to  count  upwards  from 
either  of  the  parties  related  to  the  common  stock,  and  then  down- 
wards again  to  the  other,  reckoning  a  degree  for  each  person,  both 
ascending  and  descending ;  or  in  other  words,  to  take  the  sum  of 


196  NEXT  OF  KIN. 

the  degrees  in  both  lines  to  the  common  ancestor.     (2  Bl.  Com. 

207.) 

According  to  the  common  law,  the  mode  of  computation  is  to 
beo-in  at  the  common  ancestor  and  reckon  downwards,  and  in  what- 
ever  degree  the  two  persons,  or  the  more  remote  of  them,  is  distant 
from  the  common  ancestor,  that  is  the  degree  in  which  they  are 
related  to  each  other.  It  is  obvious  that  the  degrees  by  this  cal- 
culation are  fewer  than  by  the  mode  of  the  civilians.     (Id.) 

The  spiritual  courts  adopted  the  rule  of  the  civilians  in  reckon- 
ing propinquity  of  degrees,  and  in  so  doing  place  grandfathers  a 
degree  nearer  the  intestate  than  uncles  and  aunts.  (Sioeezey  v. 
Willis,  1  Bradf.  498,  and  the  cases  cited.)  Though  the  statute 
of  distributions  has  altered,  in  several  particulars,  the  mode  of  dis- 
tribution consequent  upon  the  computation  of  the  civil  law,  yet 
wherever  it  directs  distribution  to  "  the  next  of  kin,"  the  rule  of 
the  civil  law  still  prevails.  (Sweezey  v.  Willis,  supra.  1  Wms. 
Ez-Vs,  344.  Bogert  v.  Furman,  10  Paige,  49G.  2  Kent's 
Com.  411.) 

It  was  the  policy  of  the  legislature  in  introducing  the  change  of 
phraseology  in  the  section  prescribing  to  whom  administration 
should  be  granted  in  cases  of  intestacy,  to  limit  the  discretion  of 
the  probate  court  in  the  selection,  and  to  adopt  as  far  as  practica- 
ble, fixed  rules.  Hence,  certain  kindred  are  mentioned  by  name, 
after  the  widow,  instead  of  the  general  expression  "  next  of  kin," 
in  the  former  law  and  in  the  English  statute.  Of  these,  the  chil- 
dren standing  nearer  to  the  intestate,  both  in  degree  and  in  affection, 
are  the  first  objects  of  regard.  If  there  be  no  widow,  or  if  she  re- 
nounce, or  be  disqualified,  then  the  grant  of  administration  is  to  be 
made  to  the  children  of  the  intestate.  The  intestate  may  have  left  a 
numerous  family,  some  males  and  some  females ;  some  of  full  age 
and  some  infants ;  some  females  married  and  some  single ;  some 
the  offspring  of  one  mother,  and  some  of  another  ;  and  one  or  more 
not  an  inhabitant  of  this  state.  If  the  statute  had  prescribed  no 
rule  for  the  selection  in  such  a  case,  it  would  have  devolved  on  the 
court  to  make  the  choice  if  the  parties  could  not  agree.  But  the 
statute  has  wisely  provided  for  all  these  cases. 

Thus  where  there  are  several  persons  of  the  same  degree  of  kindred 


PERSON  FORBIDDEN  TO  BE  APPOINTED.  197 

to  the  intestate  entitled  to  administration,  males  are  to  be  preferred 
to  females,  and  unmarried  women  to  such  as  are  married.  But 
where  there  are  several  equally  entitled,  the  surrogate  is  permitted 
to  exercise  his  discretion,  and  to  grant  letters  to  one  or  more  of  such 
persons.     (2  R.  S.  74,  §  28.) 

If  any  be  minors,  administration  may  be  granted  to  their 
guardian. 

If  there  be  no  children  of  the  intestate,  the  father  is  entitled  be- 
fore brothers  or  sisters  ;  and  if  there  bo  no  father  or  children, 
brothers  are  to  be  selected  before  sisters,  and  in  both  instances 
and  in  all  other  cases,  relatives  of  the  whole  blood  are  to  be  preferred 
to  those  of  the  half  blood. 

In  addition  to  the  foregoing  limitation  upon  the  discretion  of  the 
surrogate,  there  are  certain  persons  to  whom  he  is  forbidden  to 
make  the  grant.  He  is  not  to  grant  it  to  a  person  convicted  of  an 
infamous  crime,  nor  to  a  person  incapable  by  law  of  making  a  con- 
tract, nor  to  a  person  not  a  citizen  of  the  United  States,  unles  he 
resides  within  this  state,  nor  to  a  person  under  the  age  of  twenty- 
one  years  ;  nor  to  a  person  adjudged  by  the  surrogate  to  be  incom- 
petent to  execute  the  duties  of  such  trust  by  reason  of  drunken- 
ness, improvidence  or  want  of  understanding ;  nor  to  a  married 
woman,  but  in  the  latter  case  it  may  be  granted  to  her  husband  in 
her  right.  (2  R.  S.  75,  §  32,  as  amended  in  1830.  3  R.  S. 
159,  §  32,  5th  ed.) 

But  the  surrogate  has  no  discretion  to  exclude  a  person  declared 
by  the  statute  to  be  entitled  to  a  preference,  except  for  some  cause 
specified  in  the  statute.  No  degree  of  legal  or  moral  guilt  or  de- 
linquency is  sufficient  for  this  purpose,  unless  such  person  has  been 
actually  convicted  of  an  infamous  crime.  It  has  been  held  that 
the  conviction  here  intended  is  upon  an  indictment  or  other  crimi- 
nal proceeding.  {Coope  v.  Loiverre,  1  Barb.  Ch.  45.)  Nor  can 
he  be  excluded  on  the  ground  of  improvidence,  unless  the  evidence 
tends  to  show  that  the  party  cannot  be  safely  entrusted  with  the 
management  and  preservation  of  the  trust  property.  {Id.)  But 
the  fact  that  a  man  is  a  professional  gambler,  is  presumptive  evi- 
dence of  such  improvidence  as  to  render  him  incompetent  to  dis- 
charge the  duties  of  executor  or  administrator.  {McMahon  v. 
Harrison,  2  Seld.  443.) 


^98  DISCRETION  OF  SURROGATE. 

The  different  parts  of  the  statute  must  be  so  construed  as  to 
harmonize  with  each  other.  It  is  quite  obvious  that  a  relative  of  the 
intestate,  who  has  no  interest  or  title  to  a  distributive  share  of  his 
estate,  can  have  no  claim  to  letters  of  administration.  The  order 
of  preference  established  by  the  statute  must  be  understood  as 
applying  only  to  the  relatives  who  would  be  intitled  to  succeed  to 
the  personal  estate  of  the  intestate.  {The  Puhlic  Administra- 
tor v.  Peters,  1  Bradf.  100.)  Though  the  section  gives  in  terms 
a  preference  to  the  father,  brothers  and  sisters  before  grand- 
children, yet  the  preference  cannot  be  allowed  when  the  former 
have  no  interest ;  and  they  have  none  under  the  statute  of  distri- 
butions if  there  be  grandchildren.     {Id.) 

The  order  of  preference  prescribed  by  the  statute  can  only  be 
interrupted  by  some  cause  mentioned  in  the  statute.  Indebtedness 
to  the  estate  does  not  render  a  person  incompetent  to  administer, 
nor  impair  his  priority  of  right  to  administration.  {Churchill  v. 
Prescolt,  2  Bradf.  304.) 

There  are  still,  under  our  statutes,  some  cases  where  the  surro- 
gate will  be  called  upon  to  exercise  his  discretion  in  selecting 
between  two  or  more  claimants  being  equally  entitled  under  the 
statute.  The  discretion  with  which  he  is  invested  was  not  given 
for  his  benefit,  but  for  the  good  of  others.  It  should  be  exercised 
with  a  wise  and  provident  regard  to  the  interest  of  those  who 
have  claims  upon  the  estate,  either  as  creditors  or  parties  in  dis- 
tribution. There  is  no  impropriety  in  consulting  the  views  of  the 
majority  in  interest  and  following  their  wishes.  (Budd  v.  Silver, 
2  Phill.  115.  Warwick  v.  Greville,  1  id.  123.)  Primogeni- 
ture gives  no  right,  but  still,  other  things  being  equal,  the  selection 
of  the  eldest  brother  would  in  general  meet  the  wishes  of  the 
family. 

It  is  scarcely  necessary  to  add,  that  a  sole  administration  is 
generally  preferred  over  a  joint  administration.  It  is  less  expensive 
to  the  parties,  more  convenient  for  the  claimants,  whether 
creditors  or  distributees,  and  more  expeditious  in  its  movements. 
{Earl  of  Warwick  v.  Greville,  supra.)  So  also,  a  man  of 
business  capacity  will  be  preferred,  if  he  possesses  the  other 
requisite  qualifications.     (  Willia??is  v.  Wilkins,  2  Phill.  100.) 


CREDITOR  ADMINISTRATOR.  190 

Wo  have  seen  that  if  none  of  the  relatives  or  guardians  will 
accept  the  trust  of  administering,  then  the  grant  may  be  made  to 
the  creditors  of  the  deceased,  and  the  creditor  first  applying,  if 
otherwise  competent,  is  entitled  to  a  preference ;  if  no  creditor 
apply  then  the  grant  may  be  made  to  any  other  person  or  persons 
legally  competent ;  but  in  the  city  of  New- York,  the  public 
administrator  has  preference  after  next  of  kin,  over  creditors  and 
all  other  persons  ;  and  in  the  other  counties  of  the  state,  the  county 
treasurer  has  preference  next  after  creditors  over  all  other  persons. 
(2  R.  S.  74,  §  27.)  In  England,  it  is  said  that  the  court  will,  on 
the  petition  of  other  creditors,  compel  the  one  selected  to  enter  into 
articles,  to  pay  debts  of  equal  degree  in  equal  proportions,  without 
any  preference  of  his  own.  (Toller,  106.)  Whether  this  practice 
ever  obtained  in  this  state  or  not,  there  is  no  longer  any  reason  for 
it,  since  the  right  of  an  administrator  to  retain  for  his  own  debt, 
has  ceased  to  exist,  and  the  statute  has  provided  for  an  equality  of 
distribution  of  the  intestates  effects  among  the  creditors  of  the 
same  class.  (2  R.  S.  88,  §  33.  Id.  77,  §  27.  Treat  v.  Fortune, 
2  Bradf.  116.) 

When  a  creditor  administrator  has  been  duly  appointed,  the 
next  of  kin  cannot  during  his  lifetime,  take  the  administration 
from  him  ;  but  upon  his  death  they  may  come  in  and  claim  admin- 
istration de  bonis  non,  provided  they  apply  within  a  reasonable 
time.  (Skeffmgton  v.  White,  1  Hagg.  699.)  In  England,  it  is 
said  a  creditor  cannot  before  administration,  deny  an  interest  or 
oppose  a  will ;  yet  when  he  has  obtained  administration  he  has  a 
right  to  maintain  it  against  the  executor  or  the  next  of  kin,  and  it 
is  not  to  be  revoked  on  mere  suggestion.  (Elme  v.  De  Costa,  1 
Phill.  173.)  In  this  state,  however,  a  creditor,  as  well  as  any 
other  person  interested  in  the  estate,  may  object  to  the  grant  of 
letters  testamentary  to  an  incompetent  person,  or  to  one  whose 
circumstances  are  such  as  not  to  afford  adequate  security  to  the 
creditors,  legatees  and  relatives  of  the  deceased.  (2  R.  8.  69,  §  2. 
Id.  70,  §  6.  3  R.  S.  154, 155,  5lh  ed.)  And  where  administration 
has  been  granted  to  a  creditor,  and  a  will  is  afterwards  produced. 
he  is  entitled  to  contest  it  in  the  same  manner  that  the  next  of  kin 
might  have  done,  without  being  subject  to  costs.  (1  Phill.  R> 
155,  166.) 


200  DISCRETION  OF  SURROGATE. 

If  none  of  the  relatives  or  next  of  kin  entitled  to  share  in  the 
distribution  of  the  estate,  or  the  creditors,  or  the  public  adminis- 
trator, will  take  out  letters,  the  surrogate  may  grant  them  to  any 
other  person  or  persons  legally  competent.  In  such  a  case,  the  ques- 
tion of  interest  is  not  regarded.  In  a  case  where  the  brother  and 
only  next  of  kin  renounced,  the  court  granted  the  administration 
to  the  nephew,  although  he  had  no  interest.  (In  the  goods  of 
Mary  Keane,  1  Hagg.  692.  2  id.  82.)  Or,  it  has  been  said, 
the  ordinary  may,  ex  officio,  grant  to  a  stranger  letters  ad  colli- 
gendum bona  defimcti,  to  gather  up  the  goods  of  the  deceased  ;  or 
may  himself  take  the  goods  of  the  deceased  into  his  own  hands,  to 
pay  the  debts  of  the  deceased,  in  such  order  as  an  executor  or 
administrator  ought  to  pay  them  ;  but  he,  or  the  stranger  who  has 
letters  ad  colligendum,  cannot  sell  them  without  making  them- 
selves executors  of  their  ownwrong.  ( Toller,  107.  In  the  goods 
of  Mary  Randall,  2  Add.  232.) 

The  general  power  of  the  surrogate  in  relation  to  cases  not 
within  the  statutes  of  administration,  is,  in  some  respects  re- 
strained in  this  state,  by  legislative  provisions.  Thus,  the  law 
authorizing  the  appointment  in  the  city  of  New  York,  of  a  public 
administrator,  and  that  conferring  similar  powers  on  the  county 
treasurer,  abridge  the  jurisdiction  of  the  surrogate  in  this  respect. 
(2  R.  &  113.  Id.  117.  3  id.  205,  215,  5th  ed.)  They  provide 
for  various  contingencies,  and  are  wisely  framed  to  protect  the 
property  of  persons  dying  intestate  within  our  jurisdiction  when 
they  have  no  relative  to  claim  administration.  In  the  cases  pro- 
vided for  by  the  statutes,  intestacy  is  presumed  until  a  will  is 
produced  and  letters  testamentary  issued  thereon.  The  duties  of 
those  officers  are  fully  pointed  out  in  the  statutes  referred  to. 

With  regard  to  cases  not  within  the  aforesaid  statutes,  the  sur- 
rogate has  the  undoubted  right,  if  neither  a  relative  or  a  creditor 
applies,  to  grant  letters  of  administration  to  any  competent  per- 
son, at  his  discretion.  It  is  presumed,  however,  that  the  power 
claimed  in  England  for  the  ordinary,  of  taking  the  goods  of  the 
deceased  into  his  own  hands,  under  certain  circumstances,  does 
not  belong  to  the  surrogates  in  this  state,  and  probably  not  to  the 
tribunals   in   other   states,   having  jurisdiction   in  testamentary 


MODE  OF  PROCEEDING.  201 

matters.  These  courts  act  only  through  the  persons  to  whom  they 
delegate  the  authority  conferred  on  them  by  the  statute  or  the 
common  law. 

Section  III. 

Of  the  practice  of  the  court,  its  mode  of  proceeding  in  grant- 
ing letters  of  administration,  and  of  their  form. 

The  mode  of  proceeding  to  obtain  letters  of  administration 
varies  in  four  different  cases.  First.  If  the  applicant  is  the  person 
entitled  to  administration,  as  where  the  widow  applies  for  letters 
on  the  estate  of  her  deceased  husband,  the  application  is  made  to 
the  surrogate,  by  petition  in  writing,  setting  forth  the  facts  which 
confer  jurisdiction  on  the  court,  and  showing  the  prior  right  of  the 
applicant.  The  surrogate  is  required  in  all  cases,  before  any  letters 
can  be  granted  on  the  estate  of  an  intestate,  to  have  proof  of  the  fact 
of  such  dying  intestate  ;  and  he  is  authorized  therefore,  to  examine 
the  person  applying  for  such  letters,  on  oath,  touching  the  time, 
place  and  manner  of  the  death,  and  whether  or  not  the  party 
dying  left  any  will ;  and  he  may  examine  any  other  person  or 
persons  on  that  subject,  and  compel  their  attendance  by  subpoena. 
(2  R.  S.  74,  §  26.)  Usually,  however,  the  petition  states  the  fact 
of  such  death,  the  place  of  residence  of  the  deceased  at  the  time 
of  his  death,  the  manner  of  his  death,  and  that  no  will,  after  a 
search  amongst  his  papers,  or  as  the  case  may  be,  has  been  found 
or  discovered,  and  that  the  applicant  believes  that  he  died  intes- 
tate ;  the  names  and  place  of  abode  of  his  kindred,  whether  any 
and  Avhich  of  them  are  infants,  and  if  so,  about  how  old,  and 
whether  they  have  guardians  or  not,  and  if  so,  the  name  and 
place  of  abode  of  such  guardian,  and  the  probable  value  of  the 
personal  estate  of  the  deceased,  The  petition  should  be  verified 
by  affidavit,  and  is,  in  general,  a  satisfactory  compliance  with  the 
statute.  (Sheldon  v.  Wright,  2  Seld.  497.)  But  it  does  not 
preclude  the  surrogate  from  requiring  an  oral  examination  of 
witnesses  on  the  various  points  deemed  material.  (For  form  of 
petition  see  Appendix,  No.  38.) 

If  the  facts  disclosed  by  the  petition  show  that  the  surrogate 
has  jurisdiction  of  the  case,  and  that  the  applicant  is  entitled  to 
26 


202  BOND  AND  OATn  OF  OFFICE. 

letters,  as  the  person  preferred  by  the  statute,  an  order  is  en- 
tered in  the  minute  book  for  the  letters  to  issue,  on  the  applicant's 
entering  into  the  requisite  bond,  and  taking  the  oath  prescribed 
by  law.  (2  R.  S.  77,  §§  41,  42.  3  id.  161,  5th  ed.)  The  oath  is 
to  be  taken  before  the  surrogate,  or  in  case  of  sickness  or  other 
inability  to  attend,  before  any  officer  authorized  to  administer  oaths, 
that  he  will  well,  honestly  and  faithfully  discharge  the  duty  of 
administrator  according  to  law.     (Appendix,  Nos.  39.  40,  41,  42.) 

The  bond  is  to  the  people  of  the  state  of  New  York,  with  two 
or  more  competent  sureties,  to  be  approved  by  the  surrogate,  to 
be  jointly  and  severally  bound.  The  penalty  must  be  not  less 
than  twice  the  value  of  the  personal  estate  of  which  the  intestate 
died  possessed,  which  value  is  to  be  ascertained  by  the  oath  of  the 
applicant  and  of  such  other  persons  as  the  surrogate  shall  think 
proper  to  examine.  It  must  be  conditioned  that  such  administra- 
tor shall  faithfully  execute  the  trust  reposed  in  him,  and  also 
that  he  shall  obey  all  orders  of  such  surrogate,  touching  the  ad- 
ministration of  the  estate  committed  to  him. 

By  the  law  of  1851,  p.  332,  (3  R.  8.  368,  5th  ed.)  the  bond 
must  be  proved  or  acknowledged  in  the  manner  deeds  are  required 
to  be  proved  or  acknowledged,  before  it  shall  be  received  by  the 
surrogate.     (Appendix,  No  40.) 

On  producing  the  bond  and  oath  of  office,  if  the  sureties  are 
deemed  sufficient,  and  the  bond  is  drawn  and  proved,  or  acknowl- 
edged, in  conformity  to  the  statute,  they  are  filed  by  the  surrogate, 
and  an  order  is  thereupon  entered  in  the  minutes  for  letters  of 
administration  forthwith  to  issue.  The  appointment  is  then  made 
out  under  the  seal  of  the  court,  and  recorded  in  the  proper  book. 
It  is  provided  that  letters  of  administration  shall  run  in  the  name 
of  the  people,  and  be  tested  in  the  name  of  the  surrogate,  or  other 
officer  granting  them.  When  issued  by  the  county  judge  or  dis- 
trict attorney,  as  they  may  be  in  certain  cases,  the  seal  of  the 
county  court  is  affixed.  (3  R.  S.  167,  §  73,  5th  ed.  2  R.  8.  80, 
§  55.)  (For  form  of  letters  and  orders  see  Appendix,  No.  43,  &c.) 

Second.  In  case  the  applicant  is  not  the  person  on  whom  the 
right  of  administration  is  cast,  although  of  kin.  and  is  desirous  of 


RENUNCIATION— CITATION.  203 

avoiding  the  delay  and  expense  of  a  citation,  as  where  the  son  of 
the  intestate  applies — his  mother,  the  widow,  being  alive  and 
competent— he  must,  in  addition  to  the  other  preliminary  proof, 
produce  and  prove  the  renunciation  of  those  having  prior  right. 
(2  R.  S.  76,  §  35.)  No  citation  .is  in  such  case  necessary.  (Pe- 
ters v.  The  Public  Administrator,  1  Bradf.  200.) 

A  renunciation  is  a  written  declination  of  the  right  to  adminis- 
ter on  the  estate  of  the  intestate,  and  is  required  to  be  subscribed 
by  the  party  making  it.  The  practice  is,  on  proving  and  filing  it, 
to  enter  an  order  in  the  minutes  that  it  be  received.  A  renuncia- 
tion has  no  effect  on  the  right  of  the  party  to  his  distributive 
share  of  the  effects  of  the  intestate.  Indeed,  it  may  be  retracted 
after  the  death  of  the  person  to  whom  the  administration  was  com- 
mitted. (Toller,  95  and  45.)  It  enures  only  to  the  benefit  of 
the  party  in  whose  favor  it  is  made.  In  all  other  respects  the  pro- 
ceedings are  the  same  as  under  the  last  head.  (See  Appendix, 
No.  50,  for  form  of  renunciation.) 

Thirdly.  In  case  the  person  applying  for  letters  is  not  entitled 
thereto  as  of  course,  and  does  not  produce  the  renunciation  of 
those  having  prior  right,  a  citation  must  be  issued  to  all  persons 
having  such  prior  right,  to  show  cause,  at  a  day  and  place  therein 
to  be  appointed,  why  administration  should  not  be  granted  to  such 
applicant.     (2  R.  S.  76,  §  35.)     (Appendix  for  form,  No.  46.) 

Before  this  citation  can  be  issued  proof  should  be  taken,  by  the 
oath  of  some  person,  of  all  the  facts  necessary  to  authorize  the 
grant  of  administration.  These  are,  the  death,  residence,  intesta- 
cy and  kindred  of  the  deceased,  the  grounds  on  which  the  appli- 
cant found  his  claim,  as  creditor,  or  entitled  to  a  distributive 
share  of  the  estate,  and  the  probable  value  of  the  assets  to  be  ad- 
ministered. These  facts  are  usually  embodied  in  a  written  peti- 
tion, as  in  the  first  case,  which  should  be  duly  verified,  and  will, 
in  general,  be  all  that  the  surrogate  will  require.  It  should  con- 
tain, in  conclusion,  the  prayer  for  a  citation  to  be  directed  to  the 
proper  parties. 

The  citation  should  run  in  the  name  of  the  people  of  the  state 
of  New  York,  be  tested  in  the  name  of  the  surrogate  or  other  offi- 
cer, by  whom  it  is  issued,  under  the  seal  of  the  court,  and  cite  and 
require  those  to  whom  it  is  addressed  to  appear  before  the  surro- 


204  CITATION— GUARDIAN  AD  LITEM. 

gate  at  a  time  and  place  therein  mentioned,  to  show  cause  why  ad- 
ministration of  the  intestate's  estate  should  not  be  committed  to 
the  applicant.  It  should  be  addressed  to  the  persons  having  prior 
right  by  name,  if  their  names  be  known,  and  if  not,  that  fact 
should  be  stated,  and  such  designation  be  given  as  would  be  likely 
to  bring  the  nature  of  the  application  to  their  notice.  (Bum's 
Ec.  Law,  tit.  Citation.)  In  the  citation  required  to  be  issued 
preparatory  to  the  proof  of  a  will  of  real  or  personal  estate,  the 
names  and  places  of  residence  of  the  persons  to  whom  it  is  ad- 
dressed are  required  to  be  stated,  as  well  as  that  of  the  guardians 
of  such  as  are  minors.  (See  ante,  p.  153,  and  3  R.  S.  147,  5th  ed.) 
Although  the  statute  is  not  as  explicit  in  relation  to  a  citation  to 
the  parties  having  prior  right,  on  an  application  for  letters  of  ad- 
ministration, no  reason  is  perceived  why  it  should  not  be  equally 
specific. 

The  mode  of  service  of  the  citation  varies  according  to  the  res- 
idence of  the  persons  to  whom  it  is  addressed.  If  they  all  reside  in 
the  county  of  the  surrogate,  it  must  be  served  personally,  or  by  leav- 
ing a  copy  at  the  residence  of  the  party,  at  least  six  days  before 
the  return  day  mentioned  in  it.  (2)  If  any  of  the  parties  live  out 
of  the  county,  but  in  the  state,  and  such  residence  can  be  ascer- 
tained, it  must  be  served  personally,  or  by  leaving  a  copy,  at  the 
residence  of  the  party,  at  least  forty  days  before  the  return 
day.  (3)  If  any  live  out  of  the  state,  a  personal  service  of  forty 
days  will  be  sufficient.  In  the  latter  case,  leaving  a  copy  will 
not  suffice.  (4)  If  the  residence  of  the  party  is  unknown,  or 
is  out  of  the  state,  a  publication  of  the  citation  once  a  week 
for  six  weeks,  in  the  state  paper,  is  a  sufficient  service.  (2  R.  S. 
76,  §  36.)  Thus,  it  appears,  that  as  to  those  out  of  the  state  two 
modes  of  service  are  allowed :  personal  service,  and  a  six  weeks' 
publication  in  the  state   paper,  at  the  option  of  the   applicant. 

With  regard  to  the  appointment  of  guardian  ad  litem  for  in- 
fants, the  same  practice  should  be  pursued  as  on  the  application 
to  admit  a  will  for  probate,  or  to  have  it  recorded  as  a  will  of  real 
estate.  (See  ante,  p.  157.)  If  the  infant  has  a  general  guardian, 
the  citation  should  be  served  on  him,  he  being  entitled  to  admin- 
ister in  right  of  his  ward  ;  and  if  any  of  the  next  of  kin  are  mar- 
ried women,  the  service  should  be  on  their  husbands. 


OBJECTIONS  TO  THE  GRANT.  205 

On  the  return  of  the  citation,  the  applicant  appears  before  the 
surrogate  either  in  person  or  by  attorney,  and  exhibits  proof  of  the 
due  service  of  the  citation.  If  this  shows  a  compliance  with  the 
statute,  and  there  is  no  opposition,  an  order  is  entered  for  the 
issuing  of  letters  of  administration  to  the  applicant  on  his  entering 
into  the  requisite  bond  and  taking  the  oath  prescribed  by  law. 
The  subsequent  proceedings  are  the  same  as  under  the  first  head. 

The  grounds  of  opposition  to  the  grant  of  administration  are 
various.  Issue  may  be  taken  on  the  material  averments  in  the 
petition.  The  fact  of  the  death,  or  the  intestacy,  may  be  contro- 
verted. Or  it  may  be  shown  that  the  party  applying  for  letters 
of  administration  is  not  entitled,  by  reason  that  some  other  party 
who  has  not  renounced,  has  a  prior  right ;  or  that  he  labors  under 
some  or  one  of  the  disqualifications  mentioned  in  the  statute. 
(2  R.  S.  75,  §  32.)  Although  it  was  held  by  the  Court  of  Appeals, 
in  Emerson  v.  Bowers,  (4  Kern.  449,)  that  the  surrogate  could 
not  supersede  letters  testamentary  which  had  been  issued  to  an 
executor,  on  proof  that  he  was  illiterate,  when  the  charge  against 
him  was  improvidence,  it  is  believed  that  he  may  withhold  the 
appointment  of  an  administrator,  on  proof  that  he  is  too  ignorant  to 
discharge  the  duties  of  the  office.  There  is,  in  the  nature  of  things, 
a  difference  between  removing  an  executor  nominated  by  the  tes- 
tator and  withholding  an  appointment  from  a  particular  individual, 
with  respect  to  whom  the  surrogate  has  the  power  of  selection. 
On  this  subject  no  definite  rule  can  be  laid  down.  The  want  of 
understanding  mentioned  in  the  statute  as  a  ground  of  exclusion, 
does  not  mean  solely  such  mental  incapacity  as  would  disable  a 
party  from  making  a  will  or  a  contract,  but,  in  the  connection  in 
which  it  stands,  evidently  implies  not  only  such  incapacity,  but 
also  ignorance  and  dullness  of  apprehension  falling  short  of  a  total 
incompetency.  In  cases  of  this  kind,  and  especially  where  the  ob- 
jections are  not  such  as  are  specifically  enumerated  in  the  statute, 
the  surrogate  must  consult  the  interest  of  the  estate,  as  well  as  the 
rights  of  the  applicant.  It  is  said  that  administration  ought  not 
to  be  committed  to  a  party  who  is  very  poor,  or  in  distressed  cir- 
cumstances, especially  if  the  estate  is  of  considerable  value. 
{Toller,  102.) 


206  CITATION  TO  ATTORNEY  GENERAL. 

Fourthly.  In  case  the  applicant  is  guardian,  or  a  husband  of 
the  party  entitled,  the  petition  must  set  forth,  in  addition  to  the 
facts  required  under  preceding  heads,  the  relation  he  bears  to  the 
intestate  and  the  party  entitled  to  the  grant.  The  prayer  of  the 
petition  should  in  such  case  also  state  in  what  right,  either  as 
guardian  or  husband,  he  asks  the  appointment.  In  other  respects 
the  practice  is  the  same  as  in  other  cases. 

It  is  proper  here  to  observe  that  in  all  cases  of  application  for 
administration  on  the  estate  of  an  intestate  a  citation  must  be 
issued  to,  and  served  on,  the  attorney  general  of  the  state,  at  least 
twenty  days  before  its  return,  unless  it  appears,  by  the  affidavit  of 
the  applicant  or  other  written  proof,  that  the  intestate  left  kindred 
entitled  to  his  estate,  specifying  the  names  of  such  kindred  and 
their  places  of  residence,  as  far  as  the  same  can  be  ascertained. 
(2  R.  S.  76,  §  37.) 

It  is  said  to  be  the  practice  in  England  not  to  issue  letters  of 
administration  until  after  the  expiration  of  fourteen  days  from  the 
death  of  the  intestate,  unless  for  special  cause,  (as  that  the  goods 
would  otherwise  perish,  or  the  like.)  the  judge  shall  see  fit  to  de- 
cree them  sooner.  (1  Ought.  323,  324.  Toller,  96.  2  Burn's 
jEc.  Law,  quarto  ed.  title  Wills,  Administration,  640.  1  WmSi 
Ex'rs,  371.)  In  this  state,  when  the  grant  is  applied  for  by  a 
party  prima  facie  entitled  to  it  under  the  statute,  as  having  the 
prior  right,  or  with  the  renunciation  of  such  antecedent  party  in 
his  favor,  or  upon  the  return  of  a  citation  duly  served,  upon  all  the 
prior  parties  specifically  mentioned  in  the  section,  there  is  no 
reason  for  the  delay,  nor  does  that  practice  prevail.  But  should 
a  case  occur  where  none  of  the  parties  enumerated  in  the  27th  sec- 
tion appear  to  claim  the  grant,  and  the  application  is  made  by  a 
stranger  as  a  person  legally  competent,  it  is  believed  that  the  sur- 
rogate would  act  most  discreetly,  who  should  withhold  the  grant 
for  at  least  the  time  mentioned,  to  see  whether  some  person  having 
a  better  right  would  not  appear.  Such  a  case  would  rest  upon  the 
common  law,  and  not  upon  the  statute. 


SPECIAL  ADMINISTRATIONS.  207 


CHAPTER  VIII. 

OP    SPECIAL,    LIMITED    AND    TEMPORARY    ADMINISTRATIONS, 
AND     COLLECTOR. 

Section  I. 
Of  ad  ministration  cum  tcstamcnto  annexo. 

We  gave  a  general  summary  in  the  introduction  to  the  pre- 
ceding chapter,  of  the  various  kinds  of  administration  existing 
at  common  law  and  under  our  statutes  in  this  state,  previous  to  the 
adoption  of  the  revised  statutes.  We  pointed  out  the  difference 
between  a  general  administration,  in  cases  of  intestacy,  and  various 
other  grants  of  administration,  whether  special,  limited  or  tempo- 
rary. And  we  treated  in  that  chapter,  of  general  administration  ; 
of  the  courts  having  jurisdiction  in  such  cases  ;  of  the  persons  to 
whom  the  grant  should  be  made,  and  therein  of  the  disqualification 
and  incapacity  of  certain  parties  ;  and  we  noticed  briefly  the  prac- 
tice of  the  court  on  applications  for  the  grant. 

We  propose,  in  the  present  chapter,  to  notice  more  at  large  the 
cases  of  special,  limited  and  temporary  administration,  as  they 
now  exist  in  this  state.  And  to  point  out  some  of  the  diversities 
between  our  present  practice  and  that  which  formerly  prevailed. 

Many  of  the  cases  in  the  present  chapter,  were  not  considered 
in  England  as  falling  within  the  statute  of  administrations,  (21 
Henry  8,  ch.  5,)  which  provided  only  for  cases  of  intestacy,  and 
the  refusal  of  the  appointed  executor.  In  such  instances  the 
spiritual  courts  were  left  to  the  exercise  of  their  own  discretion  in 
the  choice  of  administrator,  according  to  their  own  practice  ;  and 
no  person  had  such  a  legal  right  to  preference  that  it  could  be 
enforced  by  the  common  law  courts.  (1  Wms.  Etfrs,  381.  Rex  v. 
Bettesworth,  2  iStr.  956.  In  the  goods  of  Southmead,  3  Curteis, 
28.)  We  showed  that  our  former  statute  was  substantially  copied 
from  the  act  of  Henry  8,  and  consequently  that  the  English  prac- 
tice and  our  own  were  much  alike.  (1  R.  L.  444.)  Under  the 
English  practice,  in  cases  where  the  grant  of  administration  was 
not  within  the  statute,  the  rule  was  to  treat  the  claimants  having 


208  SPECIAL  ADMINISTRATIONS. 

the  greatest  interest  in  the  effects  of  the  deceased,  as  prima  facie 
entitled  ;  unless  there  were  some  special  or  peculiar  circumstances 
which  required  a  different  disposition  of  the  matter.  (  Wetdrill 
v.  Wright,  2  Phill.  248.  Tucker  v.  Westgarth,  2  Add.  352.) 
And  the  rule  in  this  state  was  the  same. 

Under  the  revised  statutes,  it  has  been  the  policy  to  leave  less  to 
the  discretion  of  the  surrogate  in  the  selection  of  administrators, 
by  defining  specifically  the  party  entitled  to  the  grant.  The  legis- 
lature have  not  lost  sight  of  the  principle,  that  the  parties  having 
the  interest  in  the  estate,  should  prima  facie  have  the  control  of 
its  administration. 

Thus,  it  is  enacted  that  if  all  the  persons  named  in  a  will  as 
executors  should  renounce,  or  after  summons  issued  and  served 
shall  neglect  to  qualify,  or  shall  be  legally  incompetent,  letters 
testamentary  shall  issue  and  administration  with  the  will  annexed  be 
granted  as  if  no  executors  were  named  in  the  will,  to  the  residuary 
legatees,  or  some  or  one  of  them,  if  there  be  any  ;  if  there  be  none 
that  will  accept,  then  to  any  principal  or  specific  legatee,  if  there 
be  any ;  if  there  be  none  that  will  accept,  then  to  the  widow  and 
next  of  kin  of  the  testator,  or  to  any  creditor  of  the  testator,  in  the 
same  manner  and  under  the  like  regulations  and  restrictions  as 
letters  of  administration  incases  of  intestacy.     (2  R.  S.  71,  §  14.) 

The  foregoing  section  relates  strictly  to  cases  only  in  which  there 
either  never  was  an  executor,  or  an  executor  never  acted.  But  a 
case  falls  within  the  same  principle  and  requires  the  same  remedy 
when,  after  partially  administering  the  estate,  all  the  executors 
die,  become  incapable  of  executing  the  trust,  or  the  power  of  all  of 
them  shall  be  revoked  according  to  law.  The  death,  incapacity,  or 
removal  of  all  the  administrators  of  an  estate,  would  fall  under  the 
same  rule.  The  first  case  calls  for  letters  of  administration,  cum 
testamento  a?me.vo,  de  bonis  non  ;  and  the  last  for  an  administration 
de  bonis  non.  Both  are  in  fact  provided  for  in  the  same  section, 
(2  R.  S.  78,  §  45,)  which  directs  in  such  a  case  letters  of  admin- 
istration upon  the  goods,  chattels,  credits  and  effects  of  the  deceased 
left  unadministered,  with  the  will  annexed,  or  otherwise  as  the 
case  may  be,  to  the  widow  or  next  of  kin,  or  creditors  of  the  de- 
ceased, or  others,  in  the  same  manner  as  is  directed  in  relation  to 
the  original  letters  of  administration. 


ADMINISTRATION  CUM  TESTAMENTO  ANNEXO.         209 

It  has  sometimes  been  insisted  that  a  person  so  appointed  ad- 
ministrator is  not  bound  to  give  a  bond  like  a  general  administrator. 
But  the  statute  obviously  requires  the  oath  of  office  and  bond  from 
these  administrators  the  same  as  in  the  case  of  a  general  adminis- 
tration. (2  R.  S.  77,  §§  41,  42.  Id.  78,  §  45.  Ex  'parte  Brown, 
2  Bradf.  22.) 

With  regard  to  the  power  of  an  administrator  "with  the  will 
annexed,  it  is  enacted  that  where  such  letters  are  issued  the  will 
of  the  deceased  shall  be  observed  and  performed ;  and  the  admin- 
istrators with  such  will,  shall  have  the  rights  and  powers,  and  be 
subject  to  the  same  duties  as  if  they  had  been  named  as  executors 
in  the  will.  (2  R.  S.  72,  §  22.)  But  this,  it  seems,  must  be 
understood  with  reference  only  to  the  personalty.  Hence,  a  power 
to  an  executor  to  sell  and  dispose  of  real  estate  granted  by  a  will, 
and  to  divide  the  proceeds  among  devisees  to  whom  the  estate  was 
given  by  a  previous  clause  in  the  same  will,  cannot,  after  the  death 
of  the  executor,  be  executed  by  an  administrator  cum  testamento 
annexo,  notwithstanding  the  above  provisions  of  the  act.  ( Con/din, 
v.  Eger torts  Administrator,  21  Wend.  430.  &'.  C.  affirmed,  25 
Wend.  224.) 

In  case  there  are  several  executors  named  in  the  will,  the 
authority  vests  in  the  survivor  on  the  death  of  his  companions,  or 
in  case  of  their  incapacity  to  act.  We  have  seen  that  in  cases 
where  there  has  been  no  executor  named  in  the  will,  or  if  named, 
none  has  ever  acted,  the  administration  with  the  will  annexed  goes 
first  to  the  residuary  legatee,  and  if  there  be  none,  then  to  any 
principal  or  specific  legatee,  and  in  default  of  any  such,  then  to  the 
widow  and  next  of  kin  of  the  testator.  This  branch  of  the  statute 
gives  the  preference  to  the  legatee  over  the  widow  and  next  of  kin. 
This  is  contrary  to  the  English  practice  in  similar  cases.  They 
usually  prefer  the  next  of  kin  after  the  residuary  legatee,  to  a 
specific  or  general  legatee.  (Kooystra  v.  Buyskes,  3  Phill.  531.) 
The  reason  of  their  rule  seems  to  be  this  ;  where  there  is  no  resid- 
uary legatee  the  surplus,  after  paying  debts  and  legacies,  goes  to 
the  next  of  kin,  who  thus  have  the  same  interest  as  a  residuary 
legatee.  In  most  instances  a  legatee  would  feel  a  stronger  interest 
27 


210  WHAT  PARTIES  TO  BE  CITED. 

than  tho  next  of  kin,  especially  if  there  was  little  chance  of  a 
surplus. 

In  case  the  residuary  legatee  survives  the  testator,  but  dies  be- 
fore probate  of  the  will,  the  case  is  not  provided  for  by  the  14th 
section.  In  such  a  case  he  has  a  beneficial  interest  which  vests 
in  his  representative,  and,  according  to  the  common  law  practice, 
such  representative  had  the  same  right  to  administration  cum  testa- 
mento  anne.ro,  as  the  residuary  legatee  himself,  and  was  therefore 
entitled  to  administration  in  preference  to  the  next  of  kin  of  the 
first  testator.  (Jones  v.  Beytach,  3  Phill.  685.)  By  the  same 
reasoning,  they  would  be  entitled  to  be  preferred  before  a  general 
or  specific  legatee. 

The  right  of  the  residuary  legatee  to  administration  cum  testa- 
mento  an?iexo,  in  England,  resting  only  in  the  practice  of  the  spiritu- 
al court,  cannot,  it  seems,  be  enforced  by  mandamus,  because  it  is  not 
a  strictly  legal  right.  (Rex  v.  Bettestuorth,  2  Stra.  956.)  With 
us,  however,  it  is  a  right  declared  by  statute,  and  does  not  rest 
upon  the  rules  of  practice  of  the  court. 

In  all  these  cases,  where  a  party  has  a  prior  right,  he  must  re- 
nounce or  be  cited,  before  administration  can  be  committed  to  any 
other.  Therefore,  the  executor,  if  there  be  one,  must  be  cited  be- 
fore a  grant  to  the  residuary  legatee  ;  a  residuary  legatee  before 
a  grant  to  a  specific  legatee,  and  so  on  through  all  the  gradations 
of  priority.  (2  H.  S.  76,  §  35.)  So,  if  there  be  a  testamentary 
disposition  without  an  executor,  it  has  been  laid  down  that  the 
party  in  whose  favor  the  disposition  is  made,  must  cite  the  next  of 
kin  before  he  can  have  administration  cum  testamento  annexo. 
In  the  case  of  a  foreign  will,  it  is  the  usage  to  grant  administra- 
tion, with  the  will  annexed,  to  the  attorney  in  fact  of  the  foreign 
executor.  If  there  be  no  one  authorized  to  apply  as  such  attorney, 
letters  issue,  according  to  the  statute,  to  the  legatee's  widow  and 
next  of  kin.  The  grant  of  administration  is  regulated  by  the  law 
of  the  place  where  the  assets  are  situated.  (In  the  matter  of  the 
estate  of  Jacinto  Texador,  2  Bradf.  105.) 

The  mode  of  practice  in  this  case,  differs  but  little  from  that  in 
obtaining  general  administration.  If  the  will  has  not  been  admit- 
ted to  probate,  the  like  steps  must  be  taken  to  cause  it  to  be  done, 


ADMINISTRATION  DE  BONIS  NON.  211 

that  would  have  been  pursued  by  the  executor  if  living.  After 
probate  is  granted  on  the  will,  it  is  conceived  that  letters  of  ad- 
ministration with  the  will  annexed,  may  be  granted  forthwith  to 
the  applicant  on  his  taking  the  oath  required  by  law,  and  execut- 
ing and  delivering  to  the  surrogate  the  requisite  bond,  with 
sureties,  duly  proved  or  acknowledged.  It  is  presumed  that  it  is 
not  a  case  in  which  the  letters  can  be  delayed  on  the  filing  of  an 
affidavit  of  interested  parties,  as  in  the  case  of  letters  testamentary 
to  an  executor.  (L.  of  1887,  ch.  460,  §  22.  3  R.  S.  154,  5th  ed.) 
The  petition  to  the  surrogate  should  state  all  the  requisite  facts, 
showing  the  jurisdiction  of  the  court,  and  the  title  of  the  applicant, 
and  the  proper  parties  to  be  cited,  and  conclude  with  the  prayer 
for  a  citation  in  the  usual  form.  The  practice  is  quite  simple, 
and  is  much  like  that  on  the  application  for  probate,  if  the  will  has 
not  already  been  proved,  or  that  on  an  application  for  letters  of  ad- 
ministration, if  probate  has  already  been  had.  (See  form  in  Ap- 
pendix.) 

Section  II. 
Of  administration  de  bonis  ?ion» 

The  second  class  of  special  administration  is  an  adminis- 
tration de  bonis  non  ;  and  the  necessity  for  it,  in  this  state, 
arises  in  all  cases  where  either  a  sole  executor  dies  leav- 
ing the  estate  of  his  testator  unadministered,  or  a  sole  adminis- 
trator dies  without  having  completed  the  object  of  his  ap- 
pointment. 

There  is  no  need  of  such  an  administration  in  case  any  one,  save 
the  last  of  several  executors  or  administrators  to  whom  letters  tes- 
tamentary or  of  administration  shall  have  been  granted,  shall  die. 
become  lunatic,  convict  of  an  infamous  offense,  or  otherwise  be- 
come incapable  of  executing  the  trust  reposed  in  him ;  or,  in  case 
the  letters  testamentary,  or  of  administration,  shall  be  revoked  or 
annulled,  according  to  law,  with  respect  to  any  one  executor  or  ad- 
ministrator. For  in  such  a  case  the  remaining  executors  or  admin- 
istrators are  required  to  proceed  and  complete  the  execution  of  the 
will  or  the  administration,  according  to  law.     (2  R.  S.  78,  §  44.) 

But  if  there  be  a  plurality  of  executors  or  administrators,  and 


212  ADMINISTRATION  DE  BONIS  NON. 

all  die,  or  become  incapable  as  above  mentioned,  or  the  power  and 
authority  of  all  of  them  be  revoked  according  to  law,  the  surrogate 
having  authority  to  grant  letters  originally,  is  empowered  to  issue 
letters  of  administration  upon  the  goods,  chattels,  credits  and  as- 
sets of  the  deceased  left  unadministered,  with  the  will  annexed,  or 
otherwise,  as  the  case  may  be,  to  the  widow  or  next  of  kin,  or 
creditors  of  the  deceased,  or  others,  in  the  same  manner  as  herein 
before  directed  in  relation  to  original  letters  of  administration. 
The  administrator  so  appointed  is  required  to  give  bonds  in  the 
like  penalty,  with  like  sureties  and  conditions  as  required  of  ad- 
ministrators in  case  of  intestacy,  and  he  possesses  the  same  power 
and  authority.  Such  letters  supersede  all  former  and  other  let- 
ters testamentary  or  of  administration  upon  the  same  estate. 
(2  R.  S.  78,  §  45.) 

Formerly  there  was  no  occasion  for  letters  of  administration  de 
bonis  non  on  the  death  of  a  sole  executor  after  probate,  who  him- 
self made  a  will  appointing  an  executor,  for  in  such  a  case  the  en- 
tire representation  of  the  original  testator  would,  at  common  law, 
be  transmitted  to  him.  This  rule  is  abolished  in  this  state,  and 
on  the  death  of  the  sole  surviving  executor  of  any  last  will,  letters 
of  administration  with  the  will  annexed,  of  the  assets  of  the  first 
testator  left  unadministered,  are  required  to  be  issued,  as  above 
provided.  (2  R.  S.  71,  §  17.  Shook  v.  Shook,  19  Barb.  656.) 
And  this  whether  the  sole  executor  dies  intestate  or  not. 

If  there  were  several  executors,  and  one  alone  proved  the  will, 
and  the  rest  renounced,  it  is  said  that  upon  the  death  of  him  who 
proved  the  will,  no  interest  was  transmissible  at  common  law,  be- 
cause the  representation  survived  to  the  co-executors  who  might,  in 
spite  of  their  former  renunciation,  assume  the  executorship.  But 
if  they  persisted  in  declining,  an  administration  de  bonis  ?io?i  be- 
came necessary. 

This  administrator  de  bonis  non  will,  when  appointed,  be  the 
only  representative  of  the  party  originally  deceased.  {Dale  v. 
Roosevelt,  8  Coioen,  333.)  Such  administration  will  evidently  be 
committed  cum  testamento  annexo,  if  the  deceaaed  left  a  will,  and 
will  be  granted  to  the  person  entitled  according  to  the  general 
principles  already  developed  in  cases  of  administration.  In  many 
instances  it  is  obvious  he  will  be  a  different  person  from  the  repre- 


ADMINISTRATION  DE  BONIS  NON.  213 

scntativc  of  the  deceased  executor  ;  but  if  the  excutor  be  also 
beneficially  residuary  legatee,  his  representative  will  likewise  be 
entitled  to  the  administration  de  bonis  non  to  the  original  testator. 

With  regard  to  the  consequences  of  the  death  of  an  administra- 
tor, we  have  seen  that  the  statute  makes  no  difference  between  the 
death  of  a  sole  executor  and  a  sole  administrator.  Both  are  placed 
upon  the  same  footing.  The  subsequent  proceedings  in  both  cases 
are  alike. 

If  a  party,  who  from  his  relation  to  the  intestate  at  the  time  of 
his  death,  was  entitled  to  administration,  dies  before  letters  of  ad- 
ministration are  obtained,  his  representative  is  entitled  to  the 
grant  in  preference  to  one  who  has  no  beneficial  interest  in  the 
effects,  although  he  may  have  become  next  of  kin  at  the  time  the 
grant  is  required.     (Almes  v.  Almes,  2  Hagg.  App.  155.) 

The  common  law,  like  the  New  York  statute,  adopted  the  prin- 
ciple that  where  the  administration  had  been  granted  to  two  or 
more,  and  one  died,  the  survivors  or  survivor  became  sole  adminis- 
trator. It  was  not  like  a  letter  of  attorney  to  two,  where  by  the 
death  of  one  the  authority  ceased  ;  but  it  was  an  office  analogous 
to  that  of  executor,  an  authority  coupled  with  an  interest,  which 
survives.     (2  P.  Williams,  121.) 

With  regard  to  the  person  who,  upon  the  death  of  the  sole  or 
last  surviving  administrator,  is  entitled  to  be  appointed  adminis- 
trator de  bonis  non  to  the  original  intestate,  our  statute,  instead  of 
leaving  it  as  in  England,  to  the  discretion  of  the  surrogate,  re- 
quires that  it  should  be  granted  to  the  widow  or  next  of  kin,  or 
creditors  of  the  deceased  or  others,  in  the  same  manner  as  is  di- 
rected in  relation  to  the  original  letters  of  admininistration.  The 
administrator  so  appointed  is  required  to  give  bonds  with  the  like 
penalty,  with  like  sureties  and  condition  as  required  of  administra- 
tors in  cases  of  intestacy ;  and  he  possesses  the  like  power  and 
authority.  The  letters  when  so  granted  supersede  all  former  or 
other  letters  upon  the  same  estate.     (2  R.  S.  78,  §  45.) 

The  principle  of  the  New  York  statute  is  in  substantial  accordance 
with  that  of  the  decisions  under  the  former  law,  which  was  a  tran- 
script of  the  statute  of  Henry  8.  Upon  the  death  of  an  original 
administrator,  a  person  who  was  next  of  kin  at  the  time  of  the 


214  ADMINISTRATION  DURANTE  MINORE  zETATE. 

death  of  the  intestate  was  entitled  to  the  de  bonis  non  grant,  in 
preference  to  the  representative  of  the  original  administrator,  or 
to  the  representative  of  any  other  next  of  kin  at  the  time  of  the 
death.  The  courts  made  no  distinction  between  an  original  and 
a  de  bonis  non  administration. 

The  statute  of  this  state,  before  cited,  (§  45,)  doubtless  means 
next  of  kin  at  the  time  of  the  death  of  the  intestate.  But  it  never- 
theless takes  from  the  court  the  power  of  an  unlimited  discretion, 
and  fixes  the  principle  on  which  the  grant  is  to  be  made,  by  adopt- 
ing the  rule  before  established  in  cases  of  intestacy.  The  court, 
therefore,  is  bound  in  this  state  by  the  same  rules  in  determining 
the  grant  of  a  de  bonis  non  administration,  that  control  its  discre- 
tion in  granting  a  general  administration,  and  which  have  been 
already  considered  in  their  proper  place. 

The  practice  of  the  court  in  granting  letters  of  administration 
de  bonis  non  is  essentially  the  same  as  that  which  prevails  in  ob- 
taining a  general  administration.  (See  ante,  and  for  form  see  Ap- 
pendix.) 

Section  III. 

Of  administration  durante  minor e  cetate,  and  herein  of  admin- 
istration to  the  guardian  of  an  infant  next  of  kin. 

In  the  former  part  of  this  chapter,  it  was  stated  that  limited 
administrations  are  of  two  kinds.  1st.  Such  as  are  confined  to  a 
particular  extent  of  time  ;  and  2d.  Such  as  are  confined  to  a 
particular  subject  matter ;  and  the  former  was  said  to  embrace, 
1,  an  administration  durante  minor e  cetate ;  2,  an  administra- 
tion pendente  lite  ;  and  3,  an  administration  durante  absentia. 
(Ante,  page  185.)  We  propose  to  treat  in  the  present  section, 
of  administration  durante  minor e  cetate,  and  in  connection  there- 
with, of  the  granting  of  administration  to  the  guardian  of  an 
infant. 

This  species  of  administration  is  granted  where  the  person  ap- 
pointed sole  executor,  or  he  to  whom,  in  case  of  intestacy,  the 
right  to  administration  had  devolved  under  the  statute,  is  under 
the  age  of  twenty-one  years.  In  the  former  case,  it  is  obviously 
a  species  of  administration  cum  testamento  annexe 


ADMINISTRATION  DURANTE  MINORS  iETATE  215 

At  common  law  the  practice  was  said  to  be  to  grant  the  admin- 
istration to  the  guardian  of  the  party  entitled.  "With  respect  to  the 
appointment  of  a  guardian,  a  distinction  exists  in  the  spiritual  courts 
between  an  infant  and  a  minor.  The  former  is  so  denominated 
if  under  seven  years  of  age,  the  latter  from  seven  to  twenty-one. 
The  ordinary  ex  officio  asigns  a  guardian  to  an  infant ;  the  minor 
himself  may  nominate  his  guardian  ;  who  is  then  admitted  in  that 
character  by  the  judge  ;  but  if  he  makes  an  improper  choice  the 
court  will  control  it.  According  to  the  practice  of  the  prerogative 
court  the  guardianship  in  either  case  is  granted  to  the  next  of  kin 
of  the  child,  unless  sufficient  objection  to  him  be  shown.  This  dis- 
tinction between  infant  and  minor  is  recognized  in  our  courts  ; 
but  the  period  of  infancy  embraces  all  under  fourteen,  in  which 
case  the  appointment  is  made  on  the  recommendation  of  a  next 
friend  ;  and  a  minor  is  a  person  of  fourteen  and  under  twenty-one, 
and  has  a  right  of  nominating  his  own  guardian.  But  there 
were  many  instances,  at  common  law,  where  administration  has 
been  granted  to  persons  not  the  guardian  of  the  minor,  and  where 
the  courts  refused  to  give  it  to  a  person  nominated  by  him.  In 
some  instances  it  has  been  granted  to  a  creditor  in  preference  to 
the  guardian.  (  West  v.  Willy,  3  Phill.  374.  In  the  goods  of 
Ewing,  1  Hagg.  381.) 

We  have  shown  elsewhere,  that  the  common  law  in  testamentary 
matters  and  matters  of  intestacy,  was  the  law  of  the  colony  of  New 
York,  and  that  since  the  revolution  the  entire  jurisdiction  in  such 
cases  became  vested  in  the  court  of  probate  and  surrogate's  court ; 
and  that  at  the  present  time,  it  is  vested  in  the  surrogates'  courts, 
which,  in  this  respect,  are  courts  of  general  jurisdiction,  and  have 
exclusive  original  jurisdiction  over  such  subjects. 

We  have,  it  is  true,  but  meager  information  as  to  the  actual 
practice  in  the  case  of  minors,  prior  to  the  revised  statutes.  The 
decisions  of  the  court  of  probate  and  surrogates'  courts  were  not 
reported.  But  we  have  some  evidence  of  what  the  practice  was 
at  that  time.  Mr.  Bridgen,  whose  treatise  on  the  office  of  surro- 
gate was  published  in  1825,  lays  it  down  as  the  proper  practice 
to  grant  administration  to  the  guardian  of  the  infant  during  his 
minority.  And  in  case  no  guardian  will  accept,  and  the  adminis- 
tration has  to  be  granted  to  a  stranger,  he  held  that  it  should  be 


216  ADMINISTRATION  DURANTE  MINORE  iETATE. 

bo  granted  only  durante  minore  cctate.  (Bridgets  Surrogate, 
52,  53.)  Mr.  Bridgen  was  a  lawyer  of  respectable  attainments, 
and  held  the  office  of  surrogate  in  Albany  county  for  many  years  ; 
and  doubtless  was  familiar  with  its  practice  and  that  of  the  old 
court  of  probate,  which  was  held  in  Albany. 

There  was  an  established  difference  at  common  law,  where  ad- 
ministration was  granted  to  one  as  guardian  to  an  infant,  who  had 
a  right  to  administer,  but  was  incapable  of  taking  it  by  reason  of 
his  minority,  and  where  administration  was  granted  during  the 
minority  of  an  infant  executor  ;  that  in  the  last  case  the  adminis- 
tration determined  as  soon  as  the  executor  attained  the  age  of 
seventeen  years  ;  but  in  the  other  case,  it  continued  till  the  infant 
attained  his  full  age.  The  English  statutes  of  38  Geo.  3,  ch.  87, 
abrogated  this  distinction.  It  enacted  that  where  an  infant  was 
sole  executor,  administration  with  the  will  annexed  should  be 
granted  to  the  guardian  of  the  infant,  or  to  such  other  person  as 
the  spiritual  court  should  think  fit,  until  such  infant  should  have 
attained  the  full  age  of  twenty-one  years,  at  which  period  and 
not  before,  probate  of  the  will  should  be  granted  to  him,  the  in- 
fant. And  the  next  section  enacted  that  the  person  to  whom 
such  administration  should  be  granted,  should  have  the  same  pow- 
ers vested  in  him,  as  an  administrator  then  had  by  virtue  of  an 
administration  granted  to  him  durante  minore  cetate  of  the  next 
of  kin.     (Bac.  Abr.  tit.  Ex'r  and  Adirilr,  B.  2,  ch.  1.) 

It  seems  to  have  been  the  practice  of  the  spiritual  courts,  in 
such  cases,  sometimes  to  grant  a  general  administration,  without 
any  words  of  limitation  ;  and  sometimes  a  special  one,  where  the 
administration  was  granted  to  him,  ad  opus  et  usum  of  the  infant 
only.  In  the  first  case  it  is  said  "  he  has  as  large  a  power  as 
another  administrator  has,  and  therefore  he  may  assent  to  a 
legacy,  albeit  there  be  no  assets  to  pay  debts ;  he  may  sell  any 
of  the  goods  or  chattels  of  the  deceased,  or  give  them  away,  or 
the  like,  as  another  administrator  may  do.  But  in  the  last  caso 
it  is  otherwise  ;  for  such  a  special  administrator  can  do  little  more 
than  the  ordinary  himself ;  and  therefore,  he  may  not  sell  any  of 
the  goods  or  chattels  of  the  deceased,  except  it  be  in  case  where 
they  are  like  to  perish,  for  funeral  expenses  or  for  payment  of 
debts ;  nor  may  he  assent  to  a  legacy  where  there  is  not  assets  to 


ADMINISTRATION  DURANTE  MINORE  yETATE.  217 

pay  debts,  &c"  {See  also  Sir  Moyle  Finch? s  case,  6  Coke,  67, 
68.)  to  the  same  effect.  (2  Touch.  490.)  There  is  no  adjudged 
case  in  this  state  as  to  the  form  in  which  this  sort  of  administra- 
tion should  be  granted,  or  the  power  which  it  confers.  The  statute 
enacts  that  if  any  person  who  would  otherwise  be  entitled  to 
letters  of  administration  as  next  of  kin,  or  to  letters  of  adminis- 
tration with  the  will  annexed,  as  residuary  or  specific  legatee,  shall 
be  a  minor,  such  letters  shall  be  granted  to  his  guardian,  being 
in  all  respects  competent,  in  preference  to  creditors  or  other  per- 
sons.    (2  R.  S.  75,  §  33.) 

If  this  grant  be  general,  the  power  and  duty  of  the  administrator 
would  be  the  same  as  a  general  administrator  in  cases  of  intestacy. 

The  statute  no  doubt  authorizes  the  grant  of  administration 
during  the  minority  of  the  infant,  to  a  guardian  appointed  by  the 
surrogate,  a  guardian  appointed  by  the  supreme  court  exercising 
the  powers  of  a  court  of  equity,  or  to  a  testamentary  guardian.  All 
these  several  species  of  guardianship  are  placed  on  the  same  foot- 
ing. (2  R.  S.  150.)  But  it  goes  further  ;  it  requires  the  surro- 
gate to  make  the  grant  to  the  guardian  of  the  infant  who  is 
entitled  and  willing  to  accept  it,  and  who  is  in  other  respects 
qualified;  and  thus,  in  effect,  takes  from  the  court,  the  power 
which  it  sometimes  exercised  at  common  law.  of  passing  by  the 
guardian,  and  making  the  grant  to  other  parties.  (2  R.  S.  74, 
§  27.  Id.  75,  §  33.)  It  is  silent  as  to  the  duration  of  the  grant. 
But  it  requires  from  the  person  appointed  administrator,  a  bond 
and  oath  of  office,  as  in  cases  of  general  administration.  It  is 
silent  also,  as  to  whether  the  grant  shall  be  general  or  special. 

It  is  believed  that  the  surrogate  may  in  such  a  case  make  the 
grant  general.  The  grant  to  the  guardian  being  mentioned  in 
connection  with  the  general  administration,  without  any  qualifica- 
tion or  restriction,  raises  the  presumption  that  the  legislature  did 
not  intend  a  different  form  in  the  one  case  from  the  other.  But  if 
there  be  no  guardian,  willing  to  accept,  and  the  right  of  adminis- 
tration devolves  on  the  infant,  and  the  grant  is  made  to  a  stranger, 
it  should  be  conformable  to  the  common  law  practice,  and  be  made 
specially  to  the  use  of  the  infant,  and  determinable  on  his  arriving 
at  majority.  The  case  not  being  within  the  statute,  the  form  of 
the  letters  would  be  within  the  discretion  of  the  court,  and  be 

28 


218  ADMINISTRATION  DURANTE  MINORE  iETATE. 

either  general  or  special  as  the  court  should  judge  best.  In  either 
case,  the  infant  on  coming  of  age,  would  be  entitled  to  call  in  the 
administration  and  have  it  revoked,  and  letters  granted  to  himself. 
(See  re?narks  of  Spencer,  J.  in  Taylor  v.  Delancy,  2  C.  C.  in 
Error,  144,  and  Wic/cwire  v.  Chapman,  15  Barb.  302.) 

The  guardianship  terminates  on  the  infant's  arriving  at  full  age. 
He  is  then  entitled  to  an  account  from  his  guardian  and  to  the  gene- 
ral management  of  his  affairs.  If  the  grant  of  administration  be 
special,  it  would  terminate  at  that  time,  without  any  action  of  the 
court.  If  the  grant  be  general,  it  would  continue  until  the  duties 
of  the  office  had  been  fully  discharged,  unless  the  court,  on  the 
application  of  the  infant,  after  he  had  attained  his  majority,  should 
see  fit  to  call  in  the  letters,  and  grant  administration  cle  bonis  non 
to  the  infant,  now  become  an  adult,  in  his  own  right. 

In  effect  the  administrator  durante  minore  oetate  and  the  exec- 
utor after  he  becomes  of  age,  constitute  together  but  one  repre- 
sentative of  the  original  testator.  They  are  respectively  parts  of 
an  entire  representation.  The  same  doctrine  applies  to  an  admin- 
istrator durante  minore  mtate  granted  in  cases  of  intestacy,  and 
the  substituted  administration  granted  to  the  infant  on  his  attain- 
ing his  full  age. 

In  this  state,  the  death,  removal  from  office  or  superseding  of  a 
sole  executor  or  administrator  plaintiff,  does  not  abate  the  suit  but 
the  same  is  allowed  to  continue  in  the  name  of  the  persons  who 
shall  succeed  in  the  administration  of  the  estate.  (2  R.  S.  115, 
§§  14,  15.  Campbell  v.  Bowne,  5  Paige,  34.  Baine  v.  Pine,  1 
Phill.  615.     Code  of  Procedure,  §  121.) 

The  question,  mentioned  in  the  old  books  of  authority,  whether 
an  action  brought  by  an  administrator  durante  minore  cetate, 
abated  by  the  arriving  of  the  infant  at  full  age,  is  put  at  rest  in 
this  state  by  the  code  of  procedure.  (Code,  §  121.)  If  the  letters 
be  special,  and  terminate  on  the  infant's  attaining  full  age,  it  ope- 
rates merely  as  a  transfer  of  interest,  by  force  of  law,  from  the  ad- 
ministrator to  the  infant,  and  the  court  will  allow  the  action  to  be 
continued  by  or  against  the  infant ;  or,  if  need  be,  in  the  name  of 
the  party  in  whose  favor  it  was  commenced.     In  case  the  letters 


OF  OTHER  LIMITED  ADMINISTRATIONS.  219 

were  general,  it  is  very  clear  that  the  arrival  of  the  infant  at  full 
age  would  have  no  effect  on  the  action,  until  the  court  should  re- 
voke the  grant  and  make  a  new  one  to  the  infant ;  in  which  case 
the  latter  would  be  substituted  for  the  former. 

The  mode  of  obtaining  the  grant  in  cases  of  this  kind,  is  similar 
to  that  of  obtaining  letters  of  administration.  The  petition  must 
be  varied  only  to  suit  the  circumstances  of  the  case. 

Section  IV. 

Of  collector,  and  herein  of  administration  pendente  lite,  durante 
absentia,  and  of  other  limited  or  temporary  administrations. 

In  addition  to  the  special  administrations  which  we  have  been 
considering  in  the  preceding  sections,  there  were,  at  common  law, 
several  others,  which  we  will  now  proceed  to  notice.  The  two 
most  important  of  these,  were  the  one  granted  pendente  lite,  and 
the  one  granted  durante  absentia.  The  first  was  granted  at 
common  law,  in  case  of  a  controversy  in  the  spiritual  court  con- 
cerning the  right  of  administration  to  an  intestate,  or  the  granting 
of  probate  upon  a  will ;  and  the  second,  where  the  executor  named 
in  the  will,  or  the  next  of  kin,  were  out  of  the  state,  and  probate 
had  not  been  granted  or  letters  of  administration  issued,  in  all  of 
which  cases  the  court  had  the  power  to  grant  to  another  a  limited 
administration,  durante  absentia.  ( Walker  v.  Woolaston, 
2  P.  Wms.  589.  Wills  v.  Rich,  2  Atk.  286.)  It  is  believed 
that  both  these  kinds  of  administration  were  occasionally  granted 
in  this  state,  under  the  colonial  government,  and  under  the  state  gov- 
ernment, prior  to  the  adoption  of  the  revised  statutes.  These, 
and  various  other  species  of  special  administration,  were  not  within 
the  letter  of  the  English  statutes  of  Henry  8,  regulating  the 
granting  of  administration,  but  were  supposed  to  be  within  its 
equity,  and  the  courts  in  making  the  grant  were  governed  by  their 
own  practice.  The  statute  of  Henry  8,  on  this  subject,  was  held 
by  the  court  of  errors,  as  early  as  1815,  to  be  a  part  of  the  law  of 
the  colony,  and  was  said  to  have  been  adopted  as  the  law  of  the 
state  by  the  constitution  of  1777.  {Per  Spencer,  J.  in  Taylor 
v.  Delancy,  2  C.  C.  Error,  149.)  It  was  subsequently  re-enacted 
substantially  in  the  act  of  1787,  and  the  revised  laws  of  1801,  and 


220  OF  COLLECTOR. 

in  the  act  of  1813.  (1  R.  L.  o/1813.  p.  444.)  According  to  the 
general  principle  in  such  cases,  the  adoption  by  the  colony  of  the 
statute  law  of  the  mother  country,  usually  carries  along  with  it, 
the  practice  of  the  courts  growing  out  of  it,  so  far  as  they  are  ap- 
plicable to  the  circumstances  and  condition  of  the  colony.  The 
incidents  and  accessories  generally  follow  the  state  of  the  prin- 
cipal. 

The  former  practice  of  granting  a  limited  administration,  pen- 
dente lite,  and  durante  absentia,  has  not  been,  in  terms,  repealed, 
nor  is  it  entirely  incompatible  with  our  practice  in  other  respects. 
But  the  revised  statutes  of  1830,  as  modified  by  the  act  of  1837, 
have  provided  a  convenient  substitute  for  both  these  kinds  of  spe- 
cial administration,  and  which  will,  in  effect,  supersede  the  former 
practice.  (2  R.  S.  76,  §§  38  and  39,  as  amended  by  act  of  1837, 
ch.  46,  §§  23,  24.     3  id.  160,  161,  5th  ed.) 

It  is  provided  by  the  statute  above  cited,  that  in  case  of  a  con- 
test relative  to  the  proof  of  a  will,  or  relative  to  granting  letters 
testamentary  or  of  administration  with  the  will  annexed,  or  of  ad- 
ministration in  cases  of  intestacy,  or  where  by  reason  of  absence 
from  this  state  of  an  executor  named  in  a  will,  or  for  any  other 
cause,  a  delay  is  necessarily  produced  in  granting  such  letters, 
the  surrogate  authorized  to  grant  the  same  may,  in  his  discretion, 
issue  special  letters  of  administration,  authorizing  the  preservation 
and  collection  of  the  goods  of  the  deceased. 

The  collector  so  appointed  is  clothed  with  authority  to  collect 
the  goods,  chattels,  personal  estate  and  debts  of  the  deceased,  and 
to  secure  the  same  at  such  reasonable  expense  as  the  surrogate 
shall  allow,  and  for  these  purposes  he  may  maintain  suits  as  ad- 
ministrator. Under  the  direction  of  the  surrogate,  he  may  sell 
such  of  the  goods  of  the  deceased  as  shall  be  deemed  necessary  for 
the  preservation  and  benefit  of  the  estate,  after  the  same  shall  have 
been  appraised. 

The  collector  is  required  to  take  the  oath  of  office  like  an  admin- 
istrator. (2  R.  S.  77,  §  41.)  He  is  also  required  to  execute  a 
bond  with  sureties,  to  be  approved  by  the  surrogate,  in  the  same 
penalty  as  in  the  case  of  an  administrator,  and  the  same  proceed- 
ings are  to  be  had  in  order  to  ascertain  the  penalty.  The  condi- 
tion of  the  bond  is,  that  he  shall  make  a  true  and  perfect  invento- 


OF    COLLECTOR.  221 

ry  of  such  of  the  assets  of  the  deceased  as  shall  come  to  his 
possession  or  knowledge,  and  return  the  same,  within  three 
months,  to  the  office  of  the  surrogate  granting  such  letters  ;  that 
he  will  faithfully  and  truly  account  for  all  property,  money  and 
things  in  action,  received  by  him  as  such  collector,  whenever  re- 
quired by  the  said  surrogate,  or  other  court  of  competent  author- 
ity ;  and  will  faithfully  deliver  up  the  same  to  the  person  or  per- 
sons who  shall  be  appointed  executors  or  administrators  of  the 
deceased,  or  to  such  other  person  or  persons  who  shall  be  appoint- 
ed executors  or  administrators  of  the  deceased,  or  to  such  other 
person  as  shall  be  authorized  to  receive  the  same  by  such  surro- 
gate.    (2  R.  S.  77,  §  43.) 

This  species  of  special  administration  is  never  granted  except 
where  there  is  a  necessary  delay  in  proving  the  will,  or  the  right- 
ful executor  is  out  of  the  state.  In  one  case,  during  a  contest 
on  the  probate  of  a  will,  a  special  collector  had  been  appointed  by 
the  surrogate  of  the  city  and  county  of  New  York,  with  directions 
not  to  institute  suits  without  the  permission  of  the  surrogate  ;  the 
widow  of  the  deceased  claimed  certain  property  as  gifts  made  to 
her  in  the  lifetime  of  her  husband,  the  collector  having  applied  for 
leave  to  test  the  validity  of  the  gifts  in  an  action  at  law,  permis- 
sion was  granted  by  the  court.  {Delafield  v.  Parish,  4  Bradf.  24.) 

With  respect  to  the  right  to  institute  suits,  it  was  held  in  the 
same  case,  that  the  collector  stands  on  the  same  footing  as  other 
administrators,  and  is  the  judge  of  the  propriety  of  his  own  course 
of  action,  subject  only  to  his  liability  when  the  administration  is 
terminated,  and  the  accounts  are  settled  before  the  surrogate.  If 
he  fail  to  institute  suits  at  the  instance  of  parties  in  interest,  upon 
the  offer  of  sufficient  indemnity,  he  may  be  held  accountable  for  the 
loss  resulting  from  his  refusal.     (Id.) 

The  appointment  of  a  collector  is  entirely  within  the  discretion 
of  the  surrogate,  and  is  usually  made  whenever  there  is  a  proba- 
bility of  long  delay  in  the  grant  of  administration  in  chief.  Pend- 
ing litigation  of  the  probate  the  estate  should  not  be  left  without 
official  care  and  supervision,  and  in  making  this  appointment  an 
indifferent  person  should  be  selected.  It  is  not  proper  or  custo- 
mary to  appoint  either  of  the  litigating  parties,  collector.  (Mootrie 
v.  Hunt  4  Bradf.  173.) 


222  OF  COLLEOTOE. 

In  the  city  of  New  York,  it  is  said  by  Mr.  Dayton  in  his  valuable 
treatise  (Dayton's  Surrogate,  231)  that  the  public  administrator 
is  generally  selected  as  the  collector,  in  case  of  a  contest  about  a 
will  or  the  grant  of  administration.  The  court  in  such  cases  have 
allowed  that  officer,  pending  such  a  contest,  to  sell  such  portions  of 
the  assets  as  may  be  necessary  for  the  preservation  and  benefit  of 
the  estate.     ( The  Public  Administrator  v.  Burdell,  4  Bradf.  252.) 

If  there  be  a  clear  outstanding  legal  title  adverse  to  the  estate,  the 
court  may  refuse  the  sale  ;  yet  if  there  be  reasonable  cause  for 
doubt,  the  proper  course  is  said  to  be  to  permit  the  sale  and  let 
the  question  be  tested  by  the  court  having  jurisdiction  of  the 
subject  matter.  If  the  alleged  adverse  interest  be  well  founded, 
the  party  has  an  adequate  remedy  in  courts  of  law.     (Id.) 

When  the  purpose  for  granting  this  special  administration  has 
terminated,  the  authority  conferred  by  it  comes  to  an  end,  and-  the 
party  rightfully  entitled  to  the  control  of  the  estate  should  be  put 
in  possession.  The  criterion  by  which  this  is  determined  and 
some  of  the  consequences  are  provided  for  in  the  statute.  Upon 
letters  testamentary,  or  of  administration,  being  granted,  the 
power  and  authority  of  the  collector  ceases.  But  any  suit  brought 
by  him  may  be  continued  by  the  executor  or  administrator,  in 
the  name  of  the  collector,  which  he  shall  not  have  power  to  discon- 
tinue or  release.  Such  collector  on  demand  is  required  to  deliver 
to  the  executor  or  administrator  all  the  property  and  money  of  the 
deceased  in  his  hands,  and  shall  render  an  account  on  oath  to  the 
surrogate,  of  all  his  proceedings,  upon  being  cited  for  that  purpose, 
or  without  such  citation.  Such  delivery  and  account  may  be  en- 
forced by  an  order  of  the  surrogate,  and  by  attachment  to  be 
issued  by  him  as  in  other  cases  of  administration.  (2  R.  S.  77, 
§  40.  ( Gottsberger  v.  Smith,  2  Bradf.  86.)  It  is  presumed  since 
the  adoption  of  the  code,  the  rightful  executor  or  administrator, 
as  the  case  may  be,  can  be  substituted  for  the  collector  in  all 
pending  suits.     (Code,  §  121.) 

There  are  several  other  instances  of  temporary  and  limited  ad- 
ministrations granted  as  well  cum  testamento  annexo  as  in  cases 
of  intestacy,  which  are  not  embraced  in  either  of  the  preceding 
heads.     Thus,  if  a  testator  appoints  an  executor  for  a  limited  time 


SPECIAL  ADMINISTRATIONS.  223 

and  afterwards  to  another  person  ;  or  if  he  appoints  an  executor  to 
take  effect  at  a  future  day,  it  is  evident  that  before  the  time  thus 
designated  arrives,  a  limited  administration  must  be  granted  cum 
testamento  annexo.  ( Toller,  36.  1  Wms.  Ex'rs,  203.)  This  case 
is  not  covered  by  the  provision  for  the  appointment  of  a  collector. 
There  are  numerous  cases  collected  by  Mr.  Justice  Williams  in 
his  excellent  treatise  on  executors  and  administrators,  volume 
1,  page  425  to  439,  and  which  show  the  occasional  necessity  for  a 
special  administration,  to  do  a  particular  act.  In  some  of  those 
cases  the  collector  appointed  under  the  New  York  law  would  an- 
swer the  purpose,  and  in  others  a  remedy  might  be  obtained  by  an 
action  in  the  nature  of  a  bill  in  equity. 

It  has  always  been  the  policy  of  the  common  law  to  leave  no 
right  without  some  efficient  means  to  enforce  it,  and  to  provide  an 
appropriate  remedy  for  every  wrong.     As  the  legislature  has  not 
expressly  repealed  the  authority  to  grant  limited  and  temporary 
administrations  in  cases  not  hitherto  mentioned,  and  as  the  only 
clause  in  the  revised  statutes  which  contained  an  implication  which 
might  be  construed  into  such  repeal  of  the  common  law  authority, 
has  itself  been  repealed,  (2  R.  8.  221,  §  1,  sub.  8,  repealed  by 
L.  of  1837,  p.  536,)  it  seems  to  follow  that  the  jurisdiction  to  grant 
special  administrations,  not  mentioned  in  the  revised  statutes,  still 
remains.     The  providing  of  a  new  remedy  to  enforce  an  existing 
rio-ht  does  not  take  away  the  old  remedy,  unless  the  substituted 
remedy  is  incompatible  with  that  which  before  existed,  or  there  is 
an  obvious  intention  of  the  lawgiver  to  repeal  the  former.     (See 
per  Beardslcy,  J.  in  The  People  v.  Guild,  4  Denio,  552.)    Thus, 
the  code  of  procedure,  which  substituted  supplementary  proceed- 
ings on  the  return  of  an  execution  unsatisfied  in  whole  or  in  part, 
for  the  former  practice  of  creditors'  bills,  has  never  been  thought 
to  oust  the  supreme  court  of  jurisdiction  to  reach  the  choses  in  ac- 
tion of  a  judgment  debtor,  in  a  proper  case,  by  an  action  in  the 
nature  of  a  creditor's  bill.     On  the  same  principle,  the  enlarging 
the  power  of  the  collector,  as  the  office  was  known  at  common  law, 
and  conferring  upon  him  powers  formerly  exercised  only  by  a 
special  administrator,  cannot  prevent  the  court  from  still  resorting 
to  the  appointment  of  a  special  administration  when  that  measure 
becomes  essential  to  protect  the  rights  of  parties. 


224  OF  ADMINISTRATION  BOND. 


Section  V. 

OF     THE    ADMINISTRATION     BOND,    AND     THE     BOND    GIVEN     BY 
AN    EXECUTOR    BY    ORDER    OF    THE    COURT. 

We  have  slready  shown  that  an  administrator  and  collector 
are  both  required  to  give  bonds  with  sureties  conditioned  for  the 
faithful  execution  of  their  trust.  The  form  of  those  bonds  are  sub- 
stantially given  in  this  statute,  and  have  been  already  stated  in 
this  treatise.  (3  R.  S.  163, 164,  bth  ed.  2  R.  S.  77.)  The  bond 
required  of  an  executor,  on  the  objection  of  a  party  interested,  that 
his  circumstances  are  so  precarious  as  not  to  afford  adequate  secu- 
rity for  his  due  administration  of  the  estate,  is  similar  in  its  form 
to  that  required  of  administrators.  (2  R.  IS.  72,  §  20.)  It  is  for 
the  benefit  of  every  person  interested  in  the  estate  of  the  testator, 
and  not  merely  for  the  benefit  of  the  distributee,  upon  whose  ap- 
plication the  surrogate  directs  it  to  be  given.  [Holmes  v.  Cock, 
2  Barb.  Ch.  426.) 

The  language  of  the  statute  is  that  every  person  appointed  ad- 
ministrator shall,  before  receiving  letters,  execute  a  bond  to  the 
people  with  two  or  more  competent  sureties.  If  there  be  several 
administrators,  it  is  not  deemed  indispensable  that  each  should 
execute  a  separate  bond  with  sureties,  though  such  a  practice  would 
be  legal  and  a  literal  compliance  with  the  act.  But  the  provision 
is  satisfied  by  the  executing  of  a  single  bond  by  all  the  adminis- 
trators and  their  sureties.  This  does  not  make  each  administrator 
a  surety  for  his  co-administrator,  or  liable  for  any  but  his  own  acts, 
and  such  joint  acts  as  he  participates  in.  The  sureties  are  liable 
not  only  for  the  defaults  of  the  whole,  but  for  those  of  each  one  of 
the  administrators.     (Kirby  v.  Turner,  1  Hopkins,  333.) 

The  bond  in  these  cases  is  something  more  than  a  bond  of  in- 
demnity. It  is  a  part  of  the  condition  that  the  principal  shall  obey 
all  orders  of  the  surrogate.  This  is  equivalent  to  a  covenant  to 
pay  all  judgments  that  may  be  recovered  against  him  for  a  speci- 
fied cause.  (Baggott  v.  Boulger,  2  Duer,  169.)  The  action  on 
the  bond  may  be  brought  in  the  name  of  the  people,  or  in  the  name 


EFFECT  OF  PROBATE,  &o.  225 

of  the  party  for  whose  benefit  the  prosecution  is  ordered.     {Id. 
Code,  111.) 

The  bond  is  for  the  benefit,  among  others,  of  the  creditors  of  the 
deceased.  But  a  creditor,  at  large,  cannot-  maintain  an  action  on 
it.  He  must  first  procure  a  decree  of  the  surrogate  in  his  favor, 
ordering  payment  of  his  claim  and  directing  a  prosecution  of  the 
bond  in  case  the  administrator  omits  to  pay  it.  {People  v.  Barnes, 
12  Wend.  492.     Same  v.  Corlls,  1  Sandf.  S.  C.  R.  228.) 

Although  by  the  acts  of  1837  and  1844  the  decree  of  a  surro- 
gate may  be  docketed  and  thus  become  a  lien  upon  real  estate,  still 
the  party  having  a  decree  in  his  favor,  may  proceed  and  obtain  an 
order  for  the  prosecution  of  the  bond,  without  first  resorting  to  the 
real  estate  of  the  administrator.  The  two  proceedings  are  not  in- 
compatible with  each  other,  and  are  cumulative  remedies.  {The 
People  v.  Guild,  4  Denio,  552.) 

The  omission  to  file  an  inventory  within  the  time  required  by 
law,  cannot  be  assigned  as  a  breach,  unless  it  is  shown  that  the 
relator  has  sustained  some  injury  from  the  omission.  ( The  Peo- 
ple v.  McDonald,  1  Cowen,  189.) 

By  the  law  of  1851,  page  332,  all  bonds  given  by  an  administra- 
tor or  executor  which  are  required  to  be  filed  in  the  surrogate's  office, 
must  be  proved  or  acknowledged  in  the  manner  deeds  are  required 
to  be  proved  or  acknowledged,  before  the  same  shall  be  filed  by  the 
surrogate.     (For  form  of  bond,  see  Appendix,  No.  40.) 


CHAPTER  IX. 

OF  THE  EFFECT  OF  PROBATE  AND  LETTERS  OF  ADMINISTRA- 
TION AS  LONG  AS  THEY  ARE  IN  FORCE  ;  OF  THE  REVOCATION 
OF  THEM,  AND  OF  THE  CONSEQUENCES  THEREOF. 

Section  I. 

Of  the  effect  of  probate  and  letters  of  administration,  as  long  as 
they  remain  unrepealed  or  unrevoked. 

It  has  been  shown  that  the  surrogate's  court  is  the  only  court 
of  original  jurisdiction  in  matters  testamentary  and  of  administra- 
tion in  this  state.     It  is  a  court,  too,  in  this  respect  of  exclusive 
29 


220  CONCLUSIVENESS  OF  PROBATE. 

jurisdiction.  Its  decrees,  therefore,  pronounced  in  the  exercise  of 
this  exclusive  jurisdiction,  are  binding  on  all  other  courts,  and  con- 
clusive evidence  of  the  right  directly  determined.  (1  Phil.  Ev. 
343.)  They  are  not  evidence  of  matters  incidentally  contested 
before  the  court  which  pronounced  them,  nor  of  matters  merely  in- 
ferrible from  them  by  argument.  (C.  8f  HilVs  Notes,  858.)  With 
regard  to  the  probate  of  a  will  of  personal  property,  the  legislature 
have  enacted  this  principle,  and  declared  that  where  such  probate 
is  taken  by  a  surrogate  having  jurisdiction,  it  shall  be  conclusive 
evidence  of  the  validity  of  the  will ;  until  such  probate  is  reversed 
on  appeal,  or  revoked  by  the  surrogate  in  the  manner  pointed  out 
by  the  act,  or  the  will  is  declared  void  by  a  competent  tribunal. 
(2  R.  S.  61,  §  29.  Vanderpoel  v.  Van  Valkenburgh,  2  Seld.  190.) 
It  is  in  the  nature  of  a  proceeding  in  rem,  to  which  all  persons 
having  an  interest  in  the  subject  of  litigation  may  make  themselves 
parties,  and  are  consequently  bound  by  the  decree.  {Id.  Bogar- 
dus  v.  Clark,  4  Paige,  623.  Muir  v.  The  Trustees  of  the  Leake 
and  Watts  Orphan  Asylum,  3  Barb.  Ch.  481.) 

The  English  cases  go  the  length  of  deciding  that  such  probate 
is  conclusive  as  to  the  appointment  of  an  executor,  and  the  validity 
and  contents  of  the  will,  and  cannot  be  impeached  by  evidence 
even  of  fraud.  {Plume  v.  Beale,  1  P.  Wms.  388.  Archer  v. 
Mosse,  2  Vernon,  8.) 

As  a  consequence  from  these  principles,  it  has  been  held  not  to 
be  allowable  to  prove  that  another  person  was  appointed  executor, 
or  that  the  testator  was  insane,  or  that  the  will  of  which  probate 
had  been  granted  was  forged ;  for  that  would  be  directly  contrary 
to  the  seal  of  the  court  of  probate  in  a  matter  within  its  exclusive 
jurisdiction.  {Id.  1  Lev.  235.  Allen  v.  Dundas,  3  T.  R.  125. 
1  Sir.  671.) 

The  case  of  Allen  v.  Dundas,  supra,  presented  the  question  of 
payment  to  a  person  who  had  obtained  probate  as  executor  of  a 
supposed  will  of  a  creditor,  whereas  the  will  was  a  forgery,  the 
probate  subsequently  revoked,  and  letters  of  administration  grant- 
ed to  the  next  of  kin  of  the  creditor,  who  commenced  an  action  for 
the  same  debt.  The  principal  ground  on  which  the  counsel  for  the 
plaintiff  contended  that  the  payment  to  the  executor  of  the  forged 
will  was  no  defense  to  an  action  brought  by  the  rightful  adminis- 
trator was,  that  the  executor  derived  his  whole  authority  from  the 


CONCLUSIVENESS  OF  PKOBATE.  227 

will,  the  probate  being  merely  evidence  of  his  right,  and  therefore, 
it  was  like  the  case  of  a  payment  under  a  forged  bill,  bond,  power, 
&c.  But  it  was  answered  and  resolved  by  the  court  that  the  act 
of  granting  probate  is  a  judicial  and  not  a  mere  ministerial  act, 
and  that  every  person  is  bound  by  the  judicial  acts  of  a  court  hav- 
ing competent  authority  ;  that  this  case  is  different  from  payment 
under  forged  bonds  or  bills  of  exchange  ;  for  there  the  party  is  to 
exercise  his  own  judgment,  and  act  at  his  peril.  But  in  the  case 
of  a  will  the  original  is  not  presented  to  the  party  paying ;  all  he 
can  require  is  the  probate,  that  is,  a  copy  of  the  will  authenticated 
by  the  certificate  and  seal  of  the  court.  He  has  no  means,  there- 
fore, of  detecting  the  forgery,  in  point  of  fact,  and  public  policy 
requires  that  full  credit  should  be  given  to  the  probate  till  it  is 
vacated. 

The  same  doctrine  has  been  recognized  in  this  country.  (In 
appeal  of  Peebles,  15  Serg.  <§'  Rawle,  42.)  And  additional 
force  is  imparted  to  the  justice  of  the  rule  in  this  state,  arising 
from  the  fact  that  the  authority  of  the  executor  to  receive  payment 
is  derived  rather  from  the  court  than  the  will.  But  the  jus- 
tification of  the  debtor  in  paying  to  the  executor  of  a  forged  will, 
depends  mainly  on  the  conclusive  nature  of  the  probate ;  it  being 
evidence  not  to  be  disputed,  of  the  existence  of  the  will. 

Although  the  probate  is  thus  conclusive  in  evidence,  it  is  not  so 
in  pleading,  but  an  executorship,  or  administratorship  may  be 
denied  in  pleading,  by  a  plea  of  ne  unque  executor,  or  adminis- 
trator, notwithstanding  profert  of  the  probate  or  letters  of  admin- 
istration. This  traverse  upon  issue  joined,  must  be  tried  by  the 
country ;  and  upon  such  trial,  the  production  of  the  probate,  or 
letters  of  administration,  will  be  conclusive  evidence  of  the  fact. 

Although  the  will  of  a  married  woman  made  in  pursuance  of  a 
power  must  be  admitted  to  probate,  in  order  to  confirm  judicially 
its  testamentary  nature  ;  yet  it  is  said,  the  production  of  such  pro- 
bate is  not  alone  sufficient  to  induce  a  court  of  equity  to  act  upon 
it ;  for  there  are  other  special  circumstances  which  may  be  required 
to  give  the  instrument  effect  as  a  valid  appointment,  viz  :  attesta- 
tion, sealing,  &c,  with  which  circumstances  the  temporal  courts 
have  not  trusted  the  judgment  of  the  spiritual  courts.  The*  wit- 
nesses, therefore,  to  these  facts,  must  be  examined  in  chief  to 
prove  that  the  will  was  the  wife's  act.     And  if  an  attestation  be 


228  CONCLUSIVENESS  OF  PROBATE. 

not  required  by  the  power,  still  her  signature  must  be  proved. 
(Rich  v.  Cockell,  9  Ves.  376.)  This  results  from  the  position, 
that  the  conclusiveness  of  the  probate  is  limited  to  the  testamen- 
tary character  of  the  instrument. 

On  this  principle  it  would  seem  that  though  the  probate  of  a 
will  of  a  married  woman,  under  the  act  of  April  11,  1849, 
(L.  p.  528,)  would  be  conclusive  as  to  its  testamentary  character, 
it  would  not  be  evidence  that  the  personal  property  she  attempted 
to  bequeath  was  obtained  by  her  by  gift,  grant,  or  bequest  from 
any  person  other  than  her  husband  ;  and  therefore  should  a  ques- 
tion arise  between  her  legatee  and  her  husband,  after  her  death, 
as  to  her  right  to  bequeath  the  property  in  dispute,  it  must  be 
settled  by  evidence,  aliunde  the  probate.  This  question  has  not 
yet  been  decided,  but  there  are  principles  settled  which  have  a 
bearing  on  it.  ( Wadham  v.  The  Am.  Home  Miss.  Society, 
2  Kern.  415.) 

The  common  law  jurisdiction  of  granting  probate  on  wills  and 
testaments  did  not  extend  to  a  devise,  and  therefore  the  probate 
is  no  evidence  of  the  validity  or  contents  of  a  ■will  relating  to  real 
estate,  not  even  where  the  original  is  lost,  except  as  a  mere  copy. 
{Bull.  N.  P.  245.)  By  the  N.  Y.  revised  statutes,  we  have  seen, 
■provision  is  made  for  recording  wills  of  real  estate,  in  the  surro- 
gate's court,  and  making  such  will,  accompanied  with  the  surro- 
gate's certificate  of  its  being  proved  and  recorded,  the  record  of 
such  will,  or  the  exemplification  thereof,  evidence  -without  further 
proof,  and  as  effectual  in  all  cases  as  tbe  original  will  would  be,  if 
produced  and  proved.  But  it  is  not  made,  as  in  the  case  of  a  pro- 
bate of  a  will  of  personal  estate,  conclusive,  but  the  statute  leaves 
it  open  to  be  repelled  by  contrary  proof.  (2  R.  S.  56,  §  15.)  In 
the  case  of  a  probate  it  has  been  held  that,  in  a  collateral  action, 
the  decree  of  the  surrogate  having  jurisdiction,  declaring  the  will 
duly  executed,  could  not  be  impeached  by  showing  that  there  was 
but  a  single  subscribing  witness  to  the  will,  while  the  law  requires 
at  least  two.     (  Vanderpoel  v.  Van  Valkenburgh,  2  Seld.  190.) 

But  although  the  probate  of  wills,  and  letters  testamentary 
granted  thereon,  being  the  judicial  acts  of  a  court  having  compe- 
tent authority,  cannot  be  impeached  collaterally,  yet  it  may  be 
proved  that   the  court  which  granted  them  had  no  jurisdiction, 


REVOCATION  OF  PROBATE.  229 

and  that,  therefore,  their  proceedings  are  a  nullity.  Thus,  in 
Marriot  v.  Marriot,  (1  Str.  671,)  it  was  ruled  that  evidence 
might  be  given  that  the  seal  of  the  court  was  forged,  because  that 
is  not  in  contradiction  to  the  real  seal  of  the  court,  but  admits 
and  avoids  it.  On  the  same  principle,  it  was  said  by  Buller,  J. 
in  Allen  v.  Dundas,  (3  D.  fy  E.  130,)  that  it  might  be 
proved  that  the  supposed  testator  was  alive  ;  for  in  such  case  the 
court  had  no  jurisdiction.  {Appeal  of  Peebles,  15  Serg.  fy 
liawle,  39.)  In  like  manner  it  is  presumed  that  proof  of 
any  of  the  facts  which,  if  true:  oust  the  court  of  jurisdiction, 
may  be  given.  Such  proof  would  render  the  decree  coram  non 
judice,  and  void.  But  matters  which  merely  render  it  erroneous, 
and  which  would  authorize  the  surrogate  to  revoke  it,  or  subject  it 
to  a  reversal  on  appeal,  cannot  be  interposed  in  a  collateral  pro- 
ceeding, to  defeat  a  right  claimed  under  letters  testamentary  or 
letters  of  administration. 

Section  II. 
Of  the  revocation  of  'probate. 

It  has  been  seen  that  the  statute,  while  it  declares  the  con- 
clusive nature  of  the  probate  of  a  will,  assumes  that  it  may  be 
revoked  by  the  surrogate  of  the  county  where  it  was  proved,  and 
that  it  may  be  reversed  on  appeal,  and  that  the  will  may  be  declared 
void  by  a  competent  tribunal.  On  the  happening  of  either  of 
these  events,  the  probate  ceases  to  be  conclusive,  or,  indeed,  to 
be  evidence  of  the  validity  of  the  will. 

There  are,  therefore,  two  ways  for  putting  an  end  to  probate  as 
evidence ;  1st,  by  revocation  on  a  suit  by  citation  before  the  same 
court ;  and  2d,  by  appeal  to  a  higher  tribunal.  We  shall  treat,  in 
this  section,  of  the  proceedings  by  citation. 

It  has  already  been  stated,  that  at  common  law,  the  executor  of 
a  will  proved  in  common  form,  that  is,  on  the  oath  of  the  executor, 
without  citation  to  the  next  of  kin,  might  be  compelled,  by  a  per- 
son having  an  interest,  to  prove  it  per  testes,  in  solemn  form,  at 
any  time  within  thirty  years.  The  practice  in  this  state  prior  to 
the  revised  statutes  in  1830,  was  to  prove  the  will  by  the  oath  of 
the  executor  and  one  or  more  of  the  subscribing  witnesses,  on  an 


230  CAVEAT. 

ex  parte  application  to  the  proper  court,  unless  a  caveat  had  been 
entered  in  the  office  of  the  judge  of  probate,  or  surrogate ;  in 
■which  case  the  judge  or  surrogate  was  required  to  cite  the  parties 
and  witnesses  to  appear  before  him,  and  grant  probate,  letters 
testamentary  or  administration  agreeably  to  law.  (1  R.  L.  446, 
§  9.  Bridgets  Sur.  30,  82.  Collie?'  v.  Idleys  Ex'rs,  1  Bradf. 
94.     2  Bum's  E.  L.  618,  quarto  ed.) 

A  caveat  is  a  mere  cautionary  act  to  prevent  the  court  from 
committing  a  wrong ;  and  it  was  said  to  be  in  force  for  three 
months,  and  that  while  it  was  pending  probate  could  not  be  grant- 
ed. {Toller,  72,  73.  Burris  E.  L.  title  Caveat.)  The  better 
opinion  is  that  probate  granted  in  spite  of  a  caveat  was  not  void, 
but"  erroneous  ;  and  therefore  liable  to  be   recalled  or  reversed. 

Though  the  practice  of  entering  caveats  in  this  state  is  not  in 
terms  abolished,  yet  it  has  in  a  measure  been  superseded  since  a 
citation  to  the  proper  parties  has  been  required,  in  all  cases  pre- 
vious to  admitting  a  will  to  probate,  and  of  which  we  have  fully 
treated  in  a  previous  chapter.  But  as  the  period  between  the 
issuing  and  return  of  the  citation  in  these  cases  is  short,  and  as  a 
personal  service  is  not  in  all  cases  required,  and  as  the  probate 
was  intended  to  be  conclusive,  and  the  period  of  thirty  years 
within  which  persons  interested  might  formerly  require  the  exec- 
utors to  prove  the  will  per  testes,  was  in  effect  surperseded,  it  was 
deemed  best  by  the  legislature  to  substitute  a  new  mode  of  sub- 
mitting the  will  to  a  re-examination,  and  to  abridge  the  time  within 
which  it  could  be  done.  (Collier  v.  Idlers  Ex'rs,  1  Bradf.  94.) 
Accordingly  it  is  provided,  that  notwithstanding  a  will  of  person- 
al property  may  have  been  admitted  to  probate,  any  of  the  next  ot 
kin  to  the  testator,  may  at  any  time,  within  one  year  after  such 
probate,  contest  the  same,  or  the  validity  of  such  will.  (2  R.  aS*.  61, 
§  30.)  This  power  is  only  given  to  a  next  of  kin.  It  is  not  giv- 
en to  a  creditor,  nor  to  a  person,  not  a  next  of  kin,  who  as  a  de- 
scendant of  such  next  of  kin  might  be  entitled  to  a  distributive 
share  of  the  estate  in  case  the  deceased  had  died  intestate. 

The  relative  thus  applying,  who  must  be  a  next  of  kin,  is  re- 
quired for  the  purpose  of  the  application  to  file  in  the  office  of  the 
surrogate  by  whom  the  will  was  proved,  his  allegations  in  writing 
against  the  validity  of  the  will,  or  against  the  competency  of  the 


ALLEGATION  TO  REVOKE  PROBATE.  231 

proof  thereof.  {Id.  31.)  (See  Appendix.  No.  30,  for  form  of  alle- 
gation.) 

An  allegation  is  in  the  nature  of  a  declaration  in  courts  of  com- 
mon  law,  and  it  may  have  one  or  more  articlse,  which  answer  to 
counts  in  a  declaration.  It  should  contain,  in  a  clear  and  logical 
form,  a  statement  of  the  facts  relied  upon  by  the  party,  against 
the  validity  of  the  will,  or  against  the  competency  of  the  proof 
on  which  it  was  admitted  to  probate,  as  one  or  the  other  is  the 
ground  of  complaint. 

According  to  the  practice  of  the  prerogative  court,  the  facts 
intended  to  be  relied  upon  in  support  of  any  contested  suit  are  set 
forth  in  a  plea,  which  is  termed  an  allegation  ;  this  is  submitted  to 
the  inspection  of  the  counsel  of  the  adverse  party  ;  and  if  it  appears 
to  them  objectionable,  either  in  form'  or  substance,  they  oppose 
the  admission  of  it.  If  the  opposition  goes  to  the  substance  of 
the  allegation,  and  is  held  to  be  well  founded,  the  court  rejects  it ; 
by  which  mode  of  proceeding,  the  suit  is  terminated  without  going 
into  any  proof  of  the  facts.  ( Thorold  v.  Thorold,  1  Phill.  1, 
note  a.) 

In  this  state,  the  proceeding  by  allegation  in  a  proper  case  has 
been  countenanced  by  the  court  of  chancery.  ( The  Public  Ad- 
ministrator v.   Watts,  1  Paige,  347.) 

The  practice,  upon  filing  the  allegation  is,  in  this  state,  pre- 
scribed by  the  statute,  and  differs  in  some  respects  from  that  of  the 
prerogative  court.  It  contemplates  that  the  surrogate  shall  hear 
the  proofs  of  the  parties,  and  that  his  decisions  shall  be  based  upon 
the  proofs.  It  is  enacted,  that  upon  the  filing  of  the  allegations, 
the  surrogate  shall  issue  a  citation  to  the  executors,  who  shall 
have  taken  upon  themselves  the  execution  of  the  will,  or  to  the 
administrators  with  the  will  annexed,  and  to  all  the  legatees 
named  in  the  will,  residing  in  this  state,  or  to  their  guardian,  if 
any  of  them  be  minors,  or  to  their  personal  representatives,  if 
any  of  them  be  dead,  requiring  them  to  appear  before  him  on 
some  day  to  be  therein  specified,  not  less  than  thirty  nor  more 
than  sixty  days  from  the  date  thereof,  at  his  office,  to  show  cause 
why  the  probate  of  such  will  should  not  be  revoked.  (2  R.  IS. 
61,  §  32.)     (Appendix,  31,  32.) 

After  the  service  of  the  citation,  the  executors  or  administrators 


232  REVOKING  PROBATE. 

are  required  to  suspend  all  proceedings  in  relation  to  the  estate 
of  the  testator,  except  the  recovery  of  moneys  and  the  payment 
of  debts,  until  a  decision  shall  be  had  on  such  allegations. 
(Id.  33.) 

At  the  time  appointed  for  showing  cause,  and  at  such  other 
times  thereafter  as  the  surrogate  shall  appoint,  upon  due  proof 
being  made  of  the  personal  service  of  such  citation,  upon  every 
person  named  therein,  at  least  fourteen  days  before  the  time  ap- 
pointed for  showing  cause,  the  surrogate  shall  proceed  to  hear  the 
proofs  of  the  parties.  (Id.  34.)  These  proofs  on  the  part  of  the 
complaining  party  should  be  confined  to  the  facts  set  forth  in  his 
allegations.  If  any  legatees  named  in  the  will  shall  be  minors, 
and  have  no  guardian,  the  court  is  required  to  appoint  guardians 
for  them,  to  take  care  of  their  interests  in  the  controversy. 

If  upon  hearing  the  proofs  of  the  parties  the  surrogate  shall  de- 
cide that  such  will  is  for  any  reason  invalid,  or  that  it  is  not 
sufficiently  proved  to  have  been  the  last  will  and  testament  of  the 
testator,  he  is  required  to  annul  and  revoke  the  probate  thereof ; 
if  otherwise,  he  is  to  confirm  it.  (Id.  §  35.)  The  judgment  of  the 
court  must  follow  the  nature  of  the  allegation  and  the  proofs. 

Upon  the  hearing  before  the  surrogate,  the  depositions  of  wit- 
nesses taken  on  the  first  proof  of  the  will,  who  may  be  dead,  in- 
sane, or  out  of  the  state,  may  be  received  in  evidence.  (Id.  §  36.) 
If  the  witnesses  be  alive  and  in  the  state,  and  of  sound  mind,  they 
must  be  produced  for  examination,  as  in  the  ordinary  case  of  prov- 
ing the  will.  (Collier  v.  Riley's  Ex'rs,  1  Bradf.  94.)  It  is  in 
the  nature  of  a  new  trial. 

The  revocation  or  annulling  of  such  probate  is  to  be  entered  in 
the  records  of  the  court,  properly  attested,  and  notice  thereof  is 
required  to  be  served  on  the  executors  or  administrators,  and  to 
be  published  three  weeks  in  a  newspaper  published  in  the  county, 
if  there  be  one,  the  expense  of  which  is  to  be  taxed  as  part  of  the 
costs  of  the  proceedings.  Upon  the  service  on  the-executor  or  ad- 
ministrator, his  power  or  authority  ceases,  and  he  is  required  to 
account  to  the  representatives  of  the  deceased,  whose  alleged  will 
was  contested,  for  all  moneys  and  effects  received.  But  he  is  not 
liable  for  any  act  done  in  good  faith,  previous  to  the  service  of  the 
citation,  nor  for  any  acts  so  done  in  the  collection  of  moneys  or 


REVOKING  PROBATE— COSTS.  233 

payment  of  debts,  after  the  service  of  the  citation,  and  previous 
to  the  service  of  the  notice  of  revocation.     (§  38.) 

If  the  will  or  probate  is  confirmed,  the  costs  are  to  be  paid  by 
the  party  contesting  them  ;  and  in  case  it  is  revoked,  the  party 
resisting  may  be  ordered  to  pay  the  costs,  either  personally  or 
out  of  the  property  of  the  deceased,  as  the  surrogate  shall  see  fit. 
The  payment  of  costs  is  in  all  cases  enforced  by  attachment. 
(§  39.) 

If  the  application  before  the  surrogate  be  to  revoke  the  probate, 
on  the  ground  that  the  proof  on  which  it  was  granted  was  insuffi- 
cient, it  would  seem,  from  the  language  of  the  35th  section,  that  if 
on  the  hearing  before  the  surrogate  the  defect  is  supplied,  and  the 
will,  therefore,  is  then  sufficiently  proved,  the  probate  should  be 
confirmed,  without  regard  to  the  insufficiency  of  the  original 
proof.     {Collier  v.  Idley's  Ex'rs,  1  Bradf.  94.) 

An  appeal  lies  from  the  decision  of  the  surrogate  to  the  supreme 
court.  (2  R.  S.  62,  §  35.  Id.  66,  §  55,  as  modified  by  the  act  of 
1847,  ch.  280,  §  17.  3  id.  150,  5th  ed.  Williams  v.  Fitch,  15 
Barb.  654.  Whitbeck  v.  Patterson,  22  id.  83.  Alston  v.  Jones, 
10  Paige,  98.)  The  mode  of  conducting  the  appeal  belongs  to 
treatises  on  the  practice  of  the  supreme  court,  and  does  not  come 
within  the  scope  of  the  present  treatise. 

The  foregoing  provisions  have  not  hitherto  led  to  much 
discussion  in  the  courts,  and  it  is  not  probable  that  cases  will  often 
arise  under  them.  In  the  case  of  Mason  v.  Jones,  (2  Bradf.  325.) 
it  was  held  that  where,  upon  allegations,  it  has  been  finally  deter- 
mined that  the  will  is  not  sufficiently  proved,  any  of  the  next  of 
kin,  not  a  party  to  the  contest,  may  avail  himself  of  the  decision, 
though  it  was  not  obtained  at  his  instance.  This  was  put  upon 
the  ground  that  proceedings  in  respect  to  probate  or  administra- 
tion, are  not  properly  suits  or  actions,  but  are  special  proceedings, 
of  a  mixed  character,  capable  of  being  promoted  by  any  one  inter- 
ested ;  and,  when  finally  determined,  the  judgment  partakes  so 
far  of  the  character  of  a  judgment  in  rem,  that  any  other  party  in 
interest  can  avail  himself  of  it. 

There  were  a  variety  of  grounds  for  revoking  probate,  on  cita- 
tion, at  common  law,  besides  the  invalidity  of  the  will,  and  the 

30 


234  REVOKING  LETTERS  TESTAMENTARY. 

incompetency  of  the  proof  on  -which  probate  was  granted.  Thus, 
fraud  or  surprise  was  a  sufficient  ground,  as  was  also  the  finding  a 
later  will.  It  is  conceived,  however,  that  in  the  latter  case,  the 
proceedings  should  be  by  allegation,  as  pointed  out  by  the  statute 
above  ;  because,  if  the  later  will  be  established,  it  proves  that  the 
first  was  invalid  at  the  time  probate  thereof  was  granted. 

On  principle,  it  is  plain  that  if  the  allegation  does  not  contain 
sufficient  facts  to  entitle  the  party  to  the  relief  sought,  the  surro- 
gate may  dismiss  the  complaint,  as  is  done  by  the  prerogative 
court.  It  would  be  a  useless  waste  of  time  to  hear  proof  of  mat- 
ters immaterial  to  the  question  in  dispute.  (See  forms  in  Ap- 
pendix, 26  to  34.) 

Section  III. 

Of  the  revoking  of  letters  testamentary,  and  letters  of  adminis- 
tration, and  of  the  effect  upon  intermediate  acts. 

Letters  testamentary  may  be  revoked  without  interfering  with 
the  validity  of  the  will,  or  the  probate  thereof.  Tbe  ground  for 
revoking  letters  testamentary  and  letters  of  administration  is 
mainly  the  same.  (1.)  With  respect  to  letters  testamentary,  the 
statute  has  provided  that  if  the  executor  has  become  incompetent 
by  law  to  serve  as  such,  or  his  circumstances  are  so  precarious  as 
not  to  afford  adequate  security  for  his  due  administration  of  the 
estate,  or  that  he  has  removed,  or  is  about  to  remove  from  the 
state,  the  surrogate  of  the  county  in  which  the  letters  were  grant- 
ed shall,  on  complaint  made  by  a  person  interested  in  the  estate 
of  the  deceased,  proceed  to  inquire  into  the  complaint.  (2  R.  S.  72, 
§  IS.)  For  this  purpose,  on  filing  the  complaint,  duly  verified  by 
the  oath  of  some  person,  a  citation  is  to  be  issued,  directed  to  the 
person  complained  of,  requiring  him  to  appear  before  the  surrogate 
at  a  day  and  place  therein  to  be  specified,  to  show  cause  why  he 
should  not  be  superseded.  This  citation  must  be  served  on  tho 
party,  if  in  the  county,  at  least  six  days  before  its  return  ;  and  if 
he  has  absconded,  it  may  be  served  by  leaving  it  at  his  place  of 
residence.     (Id.  §  19.) 

Upon  due  proof  of  the  service  of  the  citation,  the  surrogate  pro- 
ceeds, at  the  day  appointed,  or  on  such  other  day  as  he  shall  ap- 


REVOKING  LETTERS  TESTAMENTARY.  235 

point,  to  hear  the  proofs  and  allegations  of  the  parties  ;  and  if  it 
appears  that  the  circumstances  of  the  person  so  appointed  are 
precarious,  as  aforesaid,  or  he  is  about  to  remove  from  this  state,  the 
surrogate  requires  him  to  give  bond,  with  sureties,  like  those  re- 
quired by  law  of  administrators,  within  a  reasonable  time,  not  ex- 
ceeding five  days.  If  he  neglects  to  give  the  bond,  or  if  it  appears 
that  he  is  legally  incompetent  to  servo  as  executor,  the  surrogate 
is  required,  by  order,  to  supersede  the  letters  testamentary  issued 
to  such  person,  whose  authority  and  rights  as  executor  shall  there- 
upon cease  ;  and  if  there  be  no  acting  executor  of  such  will,  the 
surrogate  must  grant  letters  of  administration  with  the  will  an- 
nexed, of  the  assets  of  the  deceased  left  unadministered,  accord- 
ing to  law.    {Id.  §  20.)    (See  Appendix  for  forms,  No.  26,  et  seq.) 

An  executor  may  be  said  to  be  incompetent,  by  law,  to  serve  as 
such,  where  either  of  the  objections  against  him  exist,  which  by 
law  would  render  him  incompetent  to  serve.  (3  R.  S.  154,  §  3, 
bth  ed.)  Whatever  will  justify  the  court  in  withholding  the  ap- 
pointment, under  the  above  section,  if  the  objection  be  made  with- 
in the  thirty  days  from  the  granting  of  the  probate,  Avill  authorize 
the  court  to  supersede  the  letters  testamentary,  although  granted 
without  objection. 

Some  of  the  foregoing  provisions  have  received  a  judicial  expo- 
sition. In  one  case,  where  it  appeared  before  the  surrogate,  on  an 
application  by  legatees  for  the  removal  of  the  executor,  that  no 
inventory  had  been  filed  by  him ;  that  the  executor  was  squander- 
ing the  estate  in  useless  litigation ;  that  he  had  delivered  over  Jo 
his  attorney  all  the  money  and  mortgages  of  the  estate,  and  was 
ignorant  as  to  what  belonged  to  the  estate  ;  that  he  could  not  read 
writing  or  write  good  English  ;  and  that  he  had  little  or  no  prop- 
erty, was  not  in  any  steady  or  useful  employment,  kept  no  accounts 
and  had  no  knowledge  of  the  condition  or  disposition  of  the  trust 
property,  except  what  was  derived  from  his  attorney,  it  was  held 
by  the  supreme  court  of  the  second  district  that  these  facts  were 
sufficient  to  justify  the  removal  of  the  executor,  on  the  ground  of 
improvidence  and  incompetency.  {Emerson  v.  Bowers,  14  Barb. 
658.)  This  case  was  reversed  by  the  Court  of  Appeals  for  the 
reason  that  the  facts  disclosed  did  not  show  improvidence,  and 
that  the  application  should  have  been  for  an  order  requiring  the 


236  REVOKING  LETTERS  OF  ADMINISTRATION". 

executor  to  give  security  for  his  faithful  performance  of  the  trust, 
and  in  default  of  doing  so,  a  supersedeas  should  be  granted. 
{S.  C.  4  Kent.  449.)  So  also,  in  that  case,  the  failure  to  file  an 
inventory,  if  the  proper  proceedings  had  been  taken,  would  have 
led  to  the  same  result.  The  reversal  seems  to  have  been  on  a 
technical  ground,  in  presenting  the  case  to  the  surrogate's  court. 

(2.)  The  revocation  of  letters  of  administration  was  supposed, 
before  the  statute  of  21  Henry  8,  to  rest  in  the  pleasure  of  the 
ordinary.  Since  that  statute  such  letters  have  not  been  repealed 
but  for  some  just  cause.  Chancellor  Kent  assumes  that  if  letters 
of  administration  should  have  been  unduly  granted,  they  may  be 
revoked.     (2  Kent's  Com.  413.) 

Although  at  one  time  it  was  supposed  that  the  power  of  the 
ordinary,  after  having  made  the  grant  of  administration,  was  ex- 
hausted, and  he  could  not  afterwards  revoke  it,  yet,  notwithstand- 
ing that  opinion,  it  is  now  agreed  in  England,  that  the  ordinary 
may  revoke  or  set  aside  an  administration  granted  to  the  next  of 
kin,  and  that  for  several  causes  ;  as  if  they  forge  or  suppress  a 
will ;  if  they  come  too  hastily  to  take  out  administration  within 
the  fourteen  days ;  if  they  go  beyond  sea ;  become  non  compos; 
or  if  they  take  out  administration  without  security  to  account  and 
exhibit  inventories  ;  or,  if  there  be  a  residuary  legatee  ;  and  may 
in  general  for  any  fraud  used  in  obtaining  it ;  for  it  would  be  ab- 
surd to  allow  a  court  jurisdiction  herein,  and  at  the  same  time  de- 
prive them  of  the  liberty  of  vacating  and  setting  aside  an  act  of 
their  own,  which  was  obtained  from  them  by  deceit  and  imposition. 
(Bac.  Abridg.  title  Ex'rs  and  Admin.  E  12.  and  the  cases  col- 
lected there.     1  Wms.  Ex'rs,  479.) 

This  subject,  like  the  revocation  of  letters  testamentary  is  very 
fully  anticipated  by  the  revised  statutes.  They  provide  as  well 
for  the  rights  of  parties  interested  in  the  estate,  as  for  the  sureties 
in  the  administration  bond,  who  desire  to  be  discharged  from  future 
liability  :  they  contain  enactments  in  relation  to  letters  of  admin- 
istration issued  upon  false  representations,  and  for  the  recalling  of 
letters  where  the  administrator  has  become  incompetent  by  reason 
of  drunkenness,  improvidence  or  want  of  understanding ;  for  the  case 
of  the  marriage  of  a  female  administrator  ;  and  for  a  case  where  it 


REVOKING  LETTERS  OF  ADMINISTRATION.  237 

shall  appear  that  the  bond  taken  on  making  the  grant  has  become 
of  inadequate  amount ;  for  the  neglect  or  refusal  of  a  non-resident 
administrator  to  account ;  for  a  neglect  and  refusal  to  return  an 
inventory,  when  duly  required  by  the  court,  and  probably  for  other 
cases.  It  is  proposed  to  notice  briefly  some  of  these  provisions. 
The  practice  under  them  is  similar  to  that  on  instituting  proceed- 
ings to  revoke  or  supersede  letters  testamentary. 

If  the  application  be  for  the  insufficiency  of  the  sureties  to  the 
administration  bond,  it  must  be  made  by  a  party  interested  in  the 
estate.  It  can  be  made  whenever  it  is  discovered  that  the  sure- 
ties of  any  administrator  are  becoming  insolvent,  that  they  have 
removed,  or  are  about  to  remove,  from  this  state,  or  that  for  any  other 
cause  they  are  insufficient.  It  must  be  made  to  the  surrogate  of 
the  county  who  granted  the  letters.  (3  R.  JS.  163,  §  47,  5th  ed. 
L.  o/1837,  ch.  460,  §25.) 

If  satisfied  by  the  evidence  that  the  matter  requires  investiga- 
tion, the  surrogate  issues  his  citation  to  such  administrator,  re- 
quiring him  to  appear  before  the  surrogate  at  a  time  and  place  to 
be  therein  specified,  to  show  cause  why  he  should  not  give  further 
sureties.  This  citation  must  be  served  personally  on  the  adminis- 
trator, at  least  six  days  before  the  day  for  its  return.  If  he  shall 
have  absconded  or  cannot  be  found,  it  may  be  served  by  leaving  a 
copy  at  his  last  place  of  residence.  {Id.  §  48.)  If,  on  hearing  the 
proofs  and  allegations  of  the  parties,  it  should  satisfactorily  appear 
that  the  sureties  are  for  any  cause  insufficent,  the  surrogate  is  re- 
quired to  make  an  order  requiring  the  administrator  to  give  further 
sureties  in  the  usual  form,  within  a  reasonable  time,  not  exceeding 
five  days.     (§  49.). 

On  his  neglecting  to  comply  with  this  order  within  the  time  re- 
quired, the  surrogate  is  directed  to  revoke  the  letters  of  adminis- 
tration issued  to  such  administrator,  whose  authority  as  such  shall 
thereupon  cease.     {Id.  §  50.) 

In  analogy  to  the  case  of  an  application  to  remove  an  executor, 
the  petition  of  the  interested  party  should  state  such  particulars 
as  to  the  pecuniary  circumstances  of  the  sureties  as  prima  facie  to 
render  it  probable  that  the  estate  is  unsafe  without  further  secu- 
rity.    {Colegrove  v.  Horton,  11  Paige,  261.) 


238  RELIEVING  SURETIES. 

It  may  sometimes  happen  that  the  sureties  themselves  may  de- 
sire to  be  released  from  responsibility,  on  the  account  of  the  future 
acts  and  defaults  of  the  administrator.  In  such  a  case  the  surro- 
gate is  to  cause  the  administrator  to  be  cited  to  show  cause  why 
he  should  not  give  new  sureties.  This  citation  is  to  be  served  in 
the  same  manner  as  in  the  preceding  case.  If  the  administrator 
shall  give  new  sureties,  the  surrogate  may  thereupon  make  an  order 
that  the  sureties  who  applied  for  relief  shall  not  be  liable  on  the 
bond  for  any  subsequent  act,  default  or  misconduct  of  the  admin- 
istrator. If  the  administrator  neglects  to  give  the  new  security 
within  the  time  allowed  for  that  purpose,  the  surrogate  is  required 
by  order  to  revoke  the  letters  of  administration,  whose  authority 
and  rights  as  an  administrator  shall  thereupon  cease.  (3  R.  S. 
163,  164,  §  51  to  54,  5th  ed.     L.  a/1837,  ch.  460,  §§  29,  32.) 

What  will  be  a  sufficient  ground  for  the  relief  of  the  surety  on 
such  an  application  will  depend  on  the  circumstances  of  each  case. 
There  must  be  some  adequate  cause,  and  not  a  mere  capricious 
change  of  opinion  as  to  his  willingness  to  be  surety. 

The  removal  of  one  of  several  administrators  does  not  impair  the 
authority  or  duty  of  the  remaining  administrator,  but  on  the  contrary 
the  whole  interest  becomes  vested  in  the  remaining  administrator, 
who  is  empowered  to  continue  all  suits  in  his  name,  which  were  com- 
menced before  such  revocation.  If,  however,  a  sole  surviving  ad- 
ministrator be  removed,  the  surrogate  is  to  grant  administration  of 
the  goods,  chattels  and  credits  not  administered,  in  the  manner  pro- 
vided by  law.     (3  R.  S.  164,  §  55,  5th  ed.) 

There  is  still  another  class  of  cases  for  the  revoking  of  letters, 
provided  for  by  the  statute,  and  some  of  which  it  is  believed  ex- 
isted at  common  law.  Thus,  if  it  is  made  to  appear  that  the  letters 
of  administration  have  been  granted  by  reason  of  false  representa- 
tions, made  by  the  person  to  whom  they  were  granted,  and  also 
whenever  it  shall  appear  that  the  administrator  has  become  incompe- 
tent by  law  to  act  as  such  by  reason  of  drunkenness,  improvidence 
or  want  of  understanding,  the  surrogate  is  clothed  with  power  to 
revoke  the  letters.  And  also  in  case  a  female  administratrix 
marries,  the  surrogate  possesses  the  like  power.  In  all  these  cases 
the  application  to  be  effectual  must  be  made  by  a  party  having  an 
interest,     (id.  §  56.) 


REVOKING  LETTERS  OF  ADMINISTRATION.  239 

The  marriage  of  a  female  sole  administrator  lias  the  effect  to 
make  her  husband  liable  for  her  acts.  At  common  law,  the  surro- 
gate would  have  no  power  to  remove  an  administratrix  for  this 
cause.  It  is  a  power  given  to  him  by  the  statute,  and  to  be  exer- 
cised only  on  the  application  of  a  party  interested  in  the  estate. 
(  Woodruff  v.  Cox,  2  Bradf.  153.) 

It  has  been  shown  in  a  former  part  of  this  treatise,  that  before 
granting  letters  of  administration,  the  person  so  appointed  shall  give 
a  bond  to  the  people  of  this  state,  with  two  sufficient  sureties  to 
be  approved  by  the  surrogate,  in  a  penalty  of  not  less  than  twice 
the  value  of  the  personal  estate  of  which  the  intestate  died  possess- 
ed. It  may  well  happen  that  the  surrogate,  at  the  time  of  taking 
the  bond,  has  imperfect  evidence  of  the  value  of  the  personal 
estate  to  be  administered,  and  it  is  subsequently  ascertained  that 
the  penalty  of  the  bond  is  inadequate  in  amount  for  the  purpose 
for  which  it  was  taken.  The  statute  provides  for  such  a  case,  and 
empowers  the  surrogate  to  make  an  order  requiring  the  adminis- 
trator to  give  additional  security  for  the  faithful  performance  of  his 
duty,  and  in  case  of  non-compliance  to  revoke  the  letters  granted 
to  him.  This  and  the  preceding  provision  relates  also  to  executors 
who  have  given  security,  as  well  as  to  guardians.  (3  R.  S.  164, 
§  57,  5th  ed.) 

There  are  cases  where  an  executor  or  an  administrator  may  be  ab- 
sent from  this  state,  or  become  a  non-resident,  and  where  conse- 
quently the  judgments  and  process  of  the  court  to  compel  an  ac- 
count would  be  ineffectual  at  common  law.  The  statute,  however, 
authorizes  such  administrators  or  executors  to  be  cited  to  account 
pursuant  to  law,  and  if  such  parties  neglect  or  refuse,  without 
a  reasonable  cause,  to  appear  in  obedience  to  such  citation,  the 
surrogate  is  authorized  to  revoke  the  letters  testamentary  or  of 
administration,  and  to  grant  letters  testamentary  or  of  administra- 
tion of  the  goods,  chattels  and  effects  of  the  deceased  left  unad- 
ministered,  to  the  person  entitled  thereto  (other  than  such  executor 
or  administrator)  in  the  same  manner  as  original  letters  of  admin- 
istration or  letters  testamentary,  with  the  like  effect  as  when  an 
executor  or  administrator  has  neglected  or  refused  to  return  an 
inventory.     {Id.  164,  §  58,  5th  ed.) 

The  proceedings  against  an  executor  or  administrator  to  compel 


240  EFFECT  ON"  INTERMEDIATE  ACTS. 

hiui  to  return  an  inventory,  belongs  more  appropriately  to  a  sub- 
sequent chapter,  where  the  subject  will  be  treated  more  at  large. 
At  present  it  is  only  necessary  to  say  that  if  an  executor  or 
administrator  neglects  or  refuses  to  return  an  inventory  he  may 
be  proceeded  against  by  attachment  and  commitment  to  jail  until 
he  complies  with  the  order ;  and  in  case  the  executor  or  adminis- 
trator after  being  committed  to  jail,  neglects  for  thirty  days  to 
make  and  return  the  inventory,  or  in  case  he  cannot  be  served 
with  a  summons  by  reason  of  his  absence  or  concealment,  the  sur- 
rogate is  in  either  case  authorised  to  issue,  under  his  seal  of  office, 
a  revocation  of  the  letters  testamentary  or  of  administration, 
reciting  therein  the  cause  of  such  revocation,  and  to  grant  letters 
of  administration  of  the  goods,  chattels  and  effects  of  the  deceased 
unadministered  to  the  person  entitled  thereto,  (other  than  such 
executor  or  administrator)  in  the  same  manner  as  original  letters 
of  administration  or  letters  testamentary. 

It  may  sometimes  happen,  that  after  letters  of  administration 
have  been  granted,  and  the  administrator  has  entered  upon  the 
duties  of  his  trust,  in  good  faith,  a  will  of  the  supposed  intestate  is 
discovered  and  admitted  to  probate.  This  affords  a  good  ground 
of  calling  in  and  revoking  the  letters  of  administration,  (2  R.  S. 
78,)  and  the  question  will  then  arise  as  to  the  validity  of  the  acts 
done  by  the  administrator  under  his  appointment.  He  may 
have  made  sales  of  personal  property  and  paid  debts  before  he  had 
notice  of  the  will.  By  the  statute  such  acts,  done  in  good  faith, 
by  an  administrator  acting  under  an  appointment  of  the  court,  are 
to  remain  valid  and  not  to  be  impeached  on  the  happening  of  such 
a  contingency.  And  the  same  principle  is  extended  to  the  sales 
and  other  lawful  acts  done  by  executors  or  administrators  who 
may  be  subsequently  removed  or  superseded,  or  who  may  become 
incapable  of  acting.  (3  R.  S.  165,  §  59,  5th  ed.  Bloomer  v. 
Bloomer,  2  Bradf.  339.) 

There  was  a  distinction,  at  common  law,  between  a  grant  of  ad- 
ministration which  was  void,  and  one  which  was  voidable  merely. 
If  administration  was  granted,  as  in  cases  of  intestacy,  whereas  the 
testator  made  a  will  appointing  an  executor ;  or  if  it  be  grant- 
ed by  a  surrogate  having  no  jurisdiction,  the  appointment  in 


REVOCATION  OF  PROBATE.  241 

these  cases,  was  a  mere  nullity.  But  if  the  court  had  jurisdiction, 
and  the  party  died  intestate,  but  the  error  consisted  in  making  the 
grant  to  one  not  of  kin ;  or  without  citing  necessary  parties,  or  to 
a  stranger,  or  to  a  creditor  before  the  renunciation  of  the  next  of 
kin ;  or  the  person  appointed  either  was,  or  became  disqualified, 
the  grant  was  not  void  but  voidable,  and  might  be  repealed. 
{Toller,  121,  122.)  The  New  York  statute,  it  has  been  seen, 
sustains  the  acts  in  good  faith  of  the  administrator,  done  before 
notice  of  the  will,  though  at  common  law  they  were  void.  It 
places  them  on  the  same  footing  as  it  does  in  those  cases  where  the 
act  was  merely  voidable.  But  the  statute  does  not  extend  to 
a  case  where  the  surrogate  had  no  jurisdiction  of  the  subject 
matter. 

At  common  law,  too,  the  surrogate  could  not  revoke  letters  tes- 
tamentary or  letters  of  administration  on  account  of  the  omission 
to  bring  in  an  inventory.  This  we  have  seen  may  now  be  done, 
and  of  this  more  will  be  said  hereafter. 

Section   IV. 

Of  the  revocation  of  probate  or  letters  of  administration  by  ap- 
peal, and  of  the  effect  of  such  revocation  on  the  mesne  acts  of 
the  executor  or  administrator. 

In  the  two  preceding  sections  we  considered  the  question  of  re- 
calling probate  and  superseding  letters  testamentary  and  letters 
of  administration,  where  the  same  was  done  by  the  court  by  which 
they  were  granted.  It  remains  to  add  a  few  words  on  the  effect 
produced  by  the  reversing  the  decision  of  the  surrogate  in  grant- 
ing probate,  letters  testamentary  or  letters  of  administration,  by 
the  appellate  tribunal. 

While  the  old  court  of  probate  was  in  existence  the  appeal  from 
the  decision  of  the  surrogate  was  to  that  tribunal  and  thence  to  the 
court  for  the  correction  of  errors.  On  the  abolition  of  that  court, 
appeals  were  directed  to  be  made  to  the  court  of  chancery ;  and 
afterwards  in  some  cases  to  a  circuit  judge,  and  in  others  to  the  su- 
preme court.  By  the  existing  law,  all  appeals  which  may  be  taken 
from  the  decision  of  surrogates'  courts,  either  in  admitting  a  will  to 
probate  or  in  refusing  to  do  so,  are  required  to  be  made  to  the 
31 


242  REVOCATION  OF  PROBATE. 

supreme  court.  By  the  act  of  1847,  chapter  280,  §  17,  (3  R.  & 
906,  5th  id.,)  appeals  are  permitted  to  be  made  from  the  orders, 
decrees  and  sentences  of  surrogates,  in  all  cases,  to  the  supreme 
court.  This,  of  course,  embraces  appeals  from  an  order  granting 
administration,  or  revoking  letters  testamentary  or  letters  of  ad- 
ministration. The  statute  prescribes  the  bond  which  is  necessary 
to  be  given  by  the  appellant  in  order  to  render  the  appeal  effectual, 
and  then  enacts  that  every  such  appeal,  except  in  certain  specified 
cases,  shall  suspend  all  proceedings  on  the  order  appealed  from, 
until  such  appeal  be  determined,  or  until  the  court  to  which  the 
appeal  shall  have  been  made,  shall  authorize  proceedings  thereon. 
(3  R.  S.  906,  5th  ed.) 

The  intermediate  acts  of  the  executor  or  administrator,  pending 
the  appeal  after  notice,  are  necessarily  void,  except  in  the  specified 
cases.  The  cases  thus  excepted  from  the  general  rule  are  1st,  ap- 
peals from  the  order  appointing  a  collector  or  special  administrator 
of  the  estate  of  a  deceased  person ;  2d,  from  orders  directing  the 
sale  of  perishable  property  ;  3d,  from  orders  appointing  appraisers 
of  personal  property  ;  4th,  from  all  orders  for  the  service  and  pub- 
lication of  notices  ;  5th,  appeals  from  orders  for  the  commitment  of 
any  executor,  administrator  or  guardian,  for  not  returning  an  in- 
ventory, rendering  an  account  or  obeying  any  other  order  of  a  sur- 
rogate. And  appeals  from  such  orders  for  the  commitment  of  any 
person  refusing  to  obey  any  subpoena,  or  to  testify  when  required 
according  to  law,  shall  not  stay  the  execution  of  such  order  or  pro- 
cess, unless  the  party  committed  shall  give  bond  as  directed  by  law. 
(Id.  906,  907,  5th  ed.) 

In  all  other  cases,  the  executor  or  administrator,  on  receiving 
notice  of  appeal,  must  refrain  from  doing  any  act  which  he  is 
not  expressly  allowed  to  perform.  But  the  acts  which  he  may  have 
done,  as  executor  or  administrator,  prior  to  the  appeal,  if  done  in 
good  faith,  in  the  ordinary  course  of  administration,  cannot  be 
rendered  invalid  or  be  impeached  by  the  subsequent  reversal  of 
the  order  by  which  he  was  appointed.  The  consequences  of  the 
reversal  on  appeal,  with  respect  to  such  acts,  are  the  same  as  if  the 
order  had  been  merely  revoked  by  the  surrogate  himself. 

The  time  within  which  an  appeal  may  be  taken  to  a  decree  or 
order  of  the  surrogate  court  is  limited  by  statute  in  some  cases,  to 


OF  THE  INVENTORY.  243 

three  months,  and  in  others  to  thirty  days  from  the  day  on  which 
the  decree  was  made.  (3  R.  *SY.  905,  906,  5th  ed.)  But  there  is 
no  like  provision  limiting  the  period  within  which  proceedings  may 
be  instituted  before  the  surrogate  to  revoke  letters  testamentary 
or  of  administration.  If  the  affairs  of  the  estate  are  brought  to  a 
close  within  the  period  contemplated  by  law,  or  indeed  at  any  time, 
there  would  be  no  person  having  an  interest  to  call  on  the  surro- 
gate for  a  removal.  Nor  would  any  benefit  result  to  any  one  from 
a  supersedeas  of  the  letters.  But  suppose,  as  sometimes  happens, 
the  estate  remains  for  many  years  in  the  hands  of  the  executor  or 
administrator,  unadrninistered,  surely  this  delay  in  closing  the  set- 
tlement of  the  estate,  would  not  deprive  the  court  of  the  power,  in 
a  proper  case,  to  displace  the  executors  or  administrators.  The 
argument  from  delay  in  making  the  application  to  the  surrogate 
for  a  supersedeas,  when  the  application  arises  out  of  the  miscon- 
duct of  the  parties  complained  of,  is  without  any  force,  unless  the 
parties  interested  in  the  estate  were  of  full  age.  and  capable  of  act- 
ing, and  well  apprised  of  the  facts  on  which  the  motion  is  founded. 


CHAPTER    X. 


OP    THE    INVENTORY. 


The  duty  of  an  executor  or  administrator  to  make  and  return  an 
inventory  of  the  goods  and  chattels,  rights  and  credits  of  the  de- 
ceased, can  only  be  enforced  in  this  state  by  the  surrogates'  courts. 
Those  courts  have,  in  this  state,  an  original  and  exclusive  jurisdic- 
tion over  the  practice  in  this  respect,  the  consideration  of  which 
appropriately  belongs  to  the  second  part  of  this  treatise.  The 
nature  and  quality  of  the  estate  of  an  executor  or  administrator, 
in  the  personal  effects  of  the  deceased,  and  the  powers  and  duties 
of  the  executor  or  administrator,  with  respect  to  them,  do  not  ex- 
clusively belong  to  surrogates'  courts,  although  often  the  subject 
of  discussion  in  those  courts.  Courts  of  common  law  and  equity 
jurisdiction  are  more  frequently  called  upon  to  consider  these 
rights  and  duties  than  surrogates'  courts.  The  jurisdiction  of  the 
former  is  more  ample  than  that  of  the  latter  with  respect  to  these 


241  ANCIENT  PRACTICE. 

subjects  ;  though  within  certain  limits  their  jurisdiction  is  con- 
current. For  these  reasons  it  has  been  thought  best  to  postpone, 
until  we  come  to  the  third  part  of  this  treatise,  the  consideration 
of  the  questions  in  which  all  our  courts  are  concerned  ;  and  treat 
only  in  this  part  of  those  matters  which  belong  in  the  first  instance 
to  surrogates'  courts,  as  courts  of  exclusive  original  jurisdiction. 

Section  I. 

Of  the  ancient  practice  on  the  subject  of  inventories. 

It  is  difficult  to  understand,  in  a  correct  and  scientific  manner, 
the  present  practice  on  the  subject  of  making  and  returning  an  in- 
ventory of  the  personal  estate  of  the  deceased,  as  it  is  modified  by 
the  existing  statutes  of  this  state,  without  possessing  a  general 
view  of  the  course  anciently  pursued  in  discharging  this  part  of 
the  duties  of  an  executor  or  administrator. 

An  inventory  was  required  to  be  returned,  as  a  part  of  the 
canon  law,  prior  to  any  statute.  (2  Burn's  E.  L.  quarto  eel.  644.) 
Thus,  by  a  constitution  of  Othobon,  it  was  ordained,  "  That  the  ex- 
ecutors of  testaments,  before  they  shall  intermeddle  with  the  ad- 
ministration of  the  goods,  shall  make  an  inventory  in  the  presence 
of  some  credible  persons,  who  shall  competently  understand  the 
value  of  the  deceased's  goods  ;  and  the  same  shall  exhibit  unto  the 
ordinary,  and  if  any  shall  presume  to  administer,  without  such  in- 
ventory made,  he  shall  be  punished  by  the  discretion  of  his  ordi- 
nary." 

And  by  a  constitution  of  Archbishop  Stratford,  (see  Burn,  su- 
pra,) it  is  ordered  as  follows  :  "  We  do  enjoin,  that  no  executor 
of  any  testament  shall  be  permitted  to  administer  of  his  testator's 
goods,  unless  he  first  makes  a  faithful  inventory  of  the  said  goods  ; 
the  funeral  expenses  and  the  expenses  about  the  inventory  only 
excepted.  And  the  same  inventory  shall  be  delivered  to  the  ordi- 
nary at  a  time  to  be  appointed  at  his  discretion." 

At  a  subsequent  period,  but  in  affirmance  of  the  ecclesiastical 
law,  ( Toller,  247,)  the  statute,  21  Henry  8,  ch.  5.  was  passed. 
The  4th  section  of  that  statute  is  as  follows  :  "  The  executor  and 
executors  named  by  the  testator  or  person  deceased,  or  such 
other  person  or  persons  to  whom  administration  shall  be  commit- 


ANCIENT  PRACTICE.  245 

ted.  where  any  person  dieth  intestate,  or  by  way  of  intestate,  call- 
ing or  taking  to  him  or  them  such  person  or  persons,  two  at  the 
least,  to  whom   the    person    so    dying   was    indebted,   or    made 
any  legacy  ;  and  upon  their  refusal  or  absence,  two  other  honest 
persons,  being  next  of  kin  to  the  person  so  dying  ;  and  in  their 
default  and  absence,  two  other  honest  persons  ;  and  in  their  pres- 
ence, and  by  their  directions,  shall  make  or  cause  to  be  made  a 
true  and  perfect  inventory  of  all  the  goods,  chattels,  wares,  mer- 
chandises, as  well  movable  as  not  movable,  whatsoever,  that  were 
of  said  person  so  deceased,  and  the  same  shall  cause  to  be  indent- 
ed ;  whereof  the  one  part  shall  be  by  the  said  executor  or  execu- 
tors, administrator  or   administrators,  upon  his  or  their  oath  or 
oaths,  to  be  taken  before  the  said  bishop  or  ordinary,  their  officials 
or  commissaries,  or  other  persons  having  power  to  take  probate 
or  testament,  to  be  good  and  true,  delivered  into  the  keeping  of 
the  said  bishop  or  ordinary,  or  other  person  as  aforesaid,  and  the 
other  part  thereof  to  remain  with  the  said  executor  or  executors, 
administrator  or  administrators.     And  no  bishop,  ordinary,  or 
other  whatsoever  person,  having  authority  to  take  probate  of  tes- 
taments, on  pain  in  this  statute  contained,  shall  refuse  to  take 
such  inventory,  to  him  presented  or  tendered,  to  be  delivered  as 
aforesaid" 

This  statute  was  substantially  re-enacted  in  this  state  in  1787, 
(1  Greenl.  335,  §  11,)  substituting  judge  of  probate  and  surrogate 
for  bishop  or  ordinary,  or  other  officer,  and  was  continued,  without 
alteration,  in  the  revision  of  1801  and  1813,  (1  K.  <$•  R.  535, 
§  1.  1  R.  L.  of  1813,  311,  §  1,)  except  in  the  latter  statutes, 
the  time  within  which  the  inventory  was  to  be  exhibited  was  fixed 
at  six  months,  and  the  last  sentence  in  the  British  act,  printed  in 
italics,  was  omitted  in  all. 

The  old  practice  of  the  prerogative  court  of  Canterbury  was  to 
require  an  inventory  to  be  exhibited  before  probate,  or  letters  of 
administration  granted.  (2  Burn's  E.  L.  644.  Phillips  v.  Big- 
nell,  1  Phill.  240.)  This,  however,  did  not  supersede  the  necessi- 
ty of  another  inventory  in  conformity  to  the  statutes.     (Id.) 

The  ancient  ecclesiastical  law  was  very  strict  with  respect  to  the 
making  of  inventories  ;  and  the  consequence  of  neglecting  to  make 
one,  seems  to  have  been  to  prevent  the  executor  or  administrator 


246  OBJECT  OF  INVENTORY. 

from  relying  on  want  of  assets.  (Swinb.  pt.  3,  §  17,  pi.  8.)  Even 
the  temporal  courts  formerly  considered  the  neglect  of  this  duty 
in  a  li*>-lit  unfavorable  to  the  party,  especially  where  there  was  a 
deficiency  of  assets  ;  and  although  not  conclusive  on  him,  yet  ex- 
posing him  to  imputation.     (Orr  v.  Kaines,  2  Ves.  sen.  193.) 

The  object  of  making  an  inventory,  is  to  apprise  creditors,  lega- 
tees and  parties,  in  distribution,  of  the  condition  of  the  estate. 
The  modern  English  practice  is,  therefore,  not  to  exhibit  an  in- 
ventory in  the  first  instance.  The  executor  or  administrator  usu- 
ally waits  till  he  is  cited  for  that  purpose  in  the  spiritual  court,  at 
the  instance  of  some  party  interested.  (Phillips  v.  Bignell,  su- 
pra. Toller,  250.  In  the  goods  of  Williams,  3  Hogg.  217.) 
It  was,  however,  deemed  most  prudent,  in  all  cases,  for  the  execu- 
tor or  administrator,  in  order  to  exonerate  himself,  to  exhibit  it 
previous  to  a  final  settlement.  {Kenny  v.  Jackson,  1  Hagg.  106.) 
A  probable  or  contingent  interest,  and,  in  one  case,  it  was  said  the 
appearance  of  an  interest  was  sufficient  to  entitle  a  party  to  call 
for  an  inventory.  {Phillips  v.  Bignell,  supra.)  In  this  state, 
under  the  former  law,  in  an  action  on  an  administration  bond, 
where  the  plaintiff  assigned  as  a  breach  the  non-return  of  an  in- 
ventory, and  it  not  appearing  that  any  injury  resulted  from  the 
omission,  the  supreme  court  directed  the  assignment  to  be  struck 
out.     (The  People  v.  McDonald,  1  Corcen,  189.) 

Where  an  inventory  was  made,  it  was  required  to  contain  a  full, 
true  and  perfect  description  and  estimate  of  all  the  chattels,  real 
and  personal,  in  possession  and  in  action,  to  which  the  executor  or 
administrator  was  entitled  in  that  character  as  distinguished  from 
the  heir,  the  widow,  and  the  donee  mortis  causa,  of  the  testator  or 
intestate.  (Toller,  248.  2  Wms.  Ex'rs,  841.)  It  distinguished 
such  debts  as  were  sperate  from  those  which  were  doubtful.  And 
it  was  exhibited  under  a  special  oath,  the  former  general  oath  of 
the  executor  or  administrator  not  being  deemed  sufficient.  It 
contained  nothing  except  what  the  deceased  possessed  at  his  death. 
The  subsequent  profits  of  the  business  of  the  deceased  were  not  to 
be  included.     (Pitt  v.  Woodham,  1  Hagg,  247.) 

It  was  long  a  contest  in  the  English  courts,  and  may,  perhaps, 
yet  be  considered  undecided,  whether  the  spiritual  court  acted 
ministerially  or  judicially  in  receiving  an  inventory.     The  spirit- 


COMMISSION   OF  APPRAISEMENT.  247 

ual  courts  have  long  claimed  the  right,  and  still  insist  on  the 
power,  of  entertaining  objections  to  an  inventory  on  the  ground  of 
omissions,  at  the  instance  of  a  creditor  or  legatee.  ( Tilford  v. 
Morison,  2  Add.  319,  329.  {Butler  v.  Butler,  2  Phill.  37.)  This 
claim  is  denied  by  the  courts  of  Westminster  Hall,  on  the  ground 
that  the  receiving  an  inventory  is  a  mere  ministerial  act,  and 
■when  delivered  into  court,  the  ordinary  is  bound  by  the  statute  to 
receive  it,  and  his  power  over  the  subject  is  exhausted.  (5  M.  &f  S. 
406.  3  Burrow,  1922.)  The  clause  in  the  English  statute  of 
Henry  8,  which  gives  rise  to  this  controversy,  has  never  been 
adopted  in  this  state,  and  was  omitted,  it  has  been  seen,  in  our  act 
of  1787.  It  is  probable,  therefore,  that  prior  to  the  revised  stat- 
utes, the  surrogates  had  power,  in  a  proper  case,  to  compel  a  fur- 
ther inventory,  or  to  supply  omissions.  The  revised  statutes,  it 
will  be  seen,  in  the  next  section,  have  provided  for  the  case. 
An  inventory  exhibited  by  an  executor  or  administrator  has 
always  been  considered  as  evidence  of  assets.  If  the  debts  are 
not  distinguished  as  desperate  or  doubtful,  they  are  all  presumed 
to  be  good,  and  the  onus  is  cast  upon  the  executor  or  administra- 
tor to  prove  that  they  could  not  with  reasonable  diligence  be  col- 
lected. But  the  inventory  has  never  been  held  as  conclusive 
evidence  either  for  or  against  the  executor  or  administrator,  either 
in  England  or  in  this  state.  (Bull.  N.  P.  140.  Selw.  N.  P.  712. 
Willoughby  v.  McCluer,  2  Wend.  608.) 

Sometimes,  it  is  said,  that  before  granting  letters  testamentary  or 
of  administration,  instead  of  an  inventory  of  the  personal  prop- 
erty of  the  deceased,  the  court,  at  the  instance  of  some  person 
having  an  interest,  Avould  issue  a  commission  for  the  appraisement 
and  true  valuation  of  the  goods,  rights  and  credits  of  the  deceased, 
and  an  inspection  of  the  obligations,  leases,  and  other  writings  and 
papers  concerning  his  personal  estate,  at  his  late  dwelling  house  or 
elsewhere,  on  certain  days  and  places  as  should  be  needful.  In 
such  cases  there  usually  issued  a  monition  against  the  parties  hav- 
ing possession  of  the  said  property  and  documents,  that  they 
exhibit  and  show  them  to  the  appraisers  so  appointed,  to  the  end 
that  they  might  be  appraised  and  put  in  an  inventory.  The  com- 
missioners appointed  for  this  purpose,  returned  this  inventory  to 
the  court,  under  their  oath.  (2  Burn's  E.  Law,  quarto  ed. 
652,  653,  654.)     (App.  No.  58,  59,  60,  61.) 


248  PRESENT  PRACTICE— INVENTORY. 

The  object  of  this  proceeding  was  to  guide  the  discretion  of  the 
court  as  to  the  amount  of  bail  that  should  be  required,  when  letters 
came  to  be  granted.  It  moreover  furnished  materials  for  the 
executors  or  administrators,  after  their  appointment,  of  the  extent 
and  nature  of  the  estate  which  they  were  to  administer  This  did 
not  supersede  the  necessity  for  an  inventory  to  be  subsequently 
called  for  from  the  executors  or  administrators. 

Although  this  proceeding  is  rarely  ever  necessary,  occasions 
may  arise  when  a  resort  to  it  may  be  the  only  means  of  obtaining 
the  requisite  preliminary  knowledge  of  the  estate. 

Section  II. 

Of  the  present  practice  of  making  and  returning  an  inventory 
by  the  revised  statutes,  and  herein  of  the  appointment  of  ap- 
praisers, their  power  and  duties. 

The  principal  object  of  an  inventory  is  to  exhibit,  in  a  conven- 
ient form,  to  all  persons  interested  in  the  estate  of  the  deceased, 
that  portion  of  the  personal  property  which  is  assets  in  the  hands 
of  the  executors  or  administrators,  for  the  payment  of  debts,  and 
legacies,  in  distinction  from  that  which  is  real  property  and  de- 
scends to  the  heirs.  To  accomplish  this,  such  articles  of  personal 
property  as  are  exempt  by  law  and  which  belong  to  the  widow  and 
minor  children  and  are  not  assets,  must  be  contained  in  the  inven- 
tory, by  themselves,  without  being  appraised  as  assets. 

The  first  step  towards  making  an  inventory  is  to  procure  the 
appointment  of  appraisers.  The  former  law  required  that  legatees, 
creditors  or  next  of  kin  should  be  appraisers,  and  they  were  selected 
by  the  executors  or  administrators.  This  was  sometimes  inconvenient 
and  often  led  to  disputes.  The  legislature,  at  the  revision  in  1830, 
changed  the  rule  in  this  respect,  and  required  the  surrogate,  instead 
of  the  executors  or  administrators,  to  make  the  appointment,  by  an 
instrument  in  writing,  and  restricted  his  choice  to  two  disinterested 
persons,  and  gave  them  a  reasonable  compensation  to  be  allowed 
by  the  surrogate.  (2  R.  8.  82.  3  R.  S.  168.  5th  ed.)  This  ap- 
pointment is  made  upon  the  application  of  the  executors  or  admin- 
istrators, though  not  upon  their  nomination.  The  appraisers  are 
the  officers  of  the  court,  and  are  required  before  proceeding  to  the 


INVENTORY— APPRAISERS.  249 

execution  of  their  duty  to  take  and  subscribe  an  oath,  to  be 
inserted  in  the  inventory  made  by  them,  before  any  officer  author- 
ized to  administer  oaths,  that  they  will  truly,  honestly,  and 
impartially  appraise  the  personal  property,  which  shall  be  exhibited 
to  them,  according  to  the  best  of  their  knowledge  and  ability. 
(Id.  §  4.  Applegate  v.  Cameron,  2  Bradf.  119.)  (App.  51, 
52,  53.) 

In  making  the  appointment  of  appraisers,  the  surrogate  should 
select  men  of  integrity  and  judgment,  who  would  not  collude  with 
one  party  or  the  other,  and  who  would  be  likely  to  be  impartial. 
In  the  country  where  the  parties  are  all  known  to  the  surrogate? 
or  where  their  characters  can  be  easily  ascertained,  the  appoint- 
ment is  often  made  in  an  informal  way,  on  consultation  with  the 
executors  or  administrators,  and  some  of  the  parties  interested  in 
the  estate.  But  in  strictness  it  should  be  made  with  as  much 
care  as  the  appointment  of  referees  is  made  by  courts  of  record. 
The  order  for  the  appointment  is  the  subject  of  appeal  to  the 
supreme  court,  if  made  within  thirty  days  after  granting  the  order. 
(3  R.  S.  906,  §§  25,  28,  5th  ed.) 

The  appraisers  are  in  some  measure  under  the  control  of  the 
surrogate,  and  may  doubtless  be  removed  by  him  and  others  ap- 
pointed in  their  place,  if  there  be  a  reasonable  and  adequate  cause. 

This,  though  not  expressly  stated,  is  fairly  inferable  from  the 
general  jurisdiction  of  the  surrogate  over  the  inventory,  and  the 
conduct  of  the  executors  and  administrators.  There  is  the  same 
authority  for  the  power  as  there  is  for  that  of  courts  of  record  over 
the  appointment  of  referees.  It  is  an  incident  of  every  court  of 
original  general  jurisdiction.  Neither  a  creditor,  a  legatee  or  next 
of  kin,  though  formerly  preferred  for  this  purpose,  is  now  eligible 
to  this  office. 

The  statute  we  are  considering  does  not  announce  the  principle 
on  which  the  appraisal  should  be  made,  except  that  it  should  be 
truly,  honestly  and  impartially  done.  The  personal  property  of 
deceased  persons,  in  the  hands  of  their  representatives,  is  liable  to 
taxation,  after  deducting  the  just  debts  of  the  estate.  The  prin- 
ciple which  guides  the  assessors  will  afford  a  convenient  rule  for 
the  appraisers.  It  is  that  the  estate  liable  to  taxation  shall  be 
estimated  and  assessed  by  the  assessors  at  its  full  value,  as  they 
32 


250  INVENTORY— APPRAISEMENT. 

would  appraise  the  same  in  payment  of  a  just   debt  due  from  a 
solvent  debtor.    (L.  of  1851,  ch.  176,  §3.    3  R.  S.  911, 6th  ed.  §  15.) 

The  statute  evidently  contemplates  that  the  executors  and  ad- 
ministrators shall  within  a  reasonable  time  after  qualifying,  with 
the  aid  of  the  appraisers  appointed  by  the  surrogate,  make  a  true 
and  perfect  inventory  of  all  the  goods,  chattels  and  credits  of  the 
testator  or  intestate,  and  when  the  same  shall  be  in  different  and 
distant  places,  two  or  more  such  inventories,  as  shall  be  necessary. 
Notice  of  the  time  and  place  of  making  the  appraisal  is  to  be 
served  five  days  previous  thereto  on  the  legatees  and  next  of  kin 
residing  in  the  county  where  the  property  shall  be  ;  and  it  is  re- 
quired also  to  be  posted  in  three  of  the  most  public  places  of  the 
town.  {Id.  §§  3,  4.)  What  is  a  reasonable  time  will- depend  on 
the  circumstances  of  each  case.  As  the  inventory  is  required  to  be 
returned  to  the  surrogate,  and  attested  by  the  oath  of  the  executors 
or  administrators  within  three  months  from  the  date  of  their  let- 
ters, unless  the  surrogate,  for  reasonable  cause,  allows  a  further 
time,  not  exceeding  four  months,  {compare  §§  16  and  19,  3  R.  S. 
171,  172,  5th  ed..)  it  is  obvious  that  it  should  be  done  as  soon  as 
convenience  will  permit,  and  that  the  surrogate  in  receiving  the 
inventory  acts  judicially   and  not  ministerially. 

There  are  several  circumstances  connected  with  the  taking  of 
the  inventory,  that  require  the  exercise  of  a  sound  and  wise  dis- 
cretion of  the  surrogate.  The  mode  of  service  of  the  notice,  in 
case  any  of  the  legatees  and  next  of  kin  are  infants,  and  whether 
guardians  ad  litem  should  be  appointed  for  such,  are  not  particu- 
larly specified  in  the  act.  On  general  principles  it  should  seem, 
that  guardians  ad  litem  should  be  appointed  for  such  infants  as 
have  no  guardians.  Every  court,  it  is  said,  has  an  incidental 
power  to  appoint  a  guardian  ad  litem,  and  in  many  cases,  the 
general  guardian  Avill  not  be  received  as  of  course,  without  a  spe- 
cial order  for  the  purpose.  (3  Kenfs  Com.  229.  Harg.  n.  70, 
and  note  220  to  lib.  2  Co.  Lit.) 

The  statute  contemplates  that  the  appraisement  shall  be  made  in 
the  presence  of  such  of  the  next  of  kin,  legatees  or  creditors  of  the 
testator  or  intestate  as  shall  attend.  (3  R.  S.  169,  §-5,  5th  ed.) 
Their  right  to  attend  presupposes  their  right  to  be  heard  in  case 


INVENTORY— EXEMPT  ARTICLES.  251 

any  question  should  arise  in  which  they  have  an  interest.  There 
are  many  quesitons  of  great  importance,  which  may  arise  during 
the  performance  of  this  duty.  The  appraisers  are  to  act  upon  the 
property  which  is  exhibited  to  them.  It  is  their  business  to  set  down 
each  article  separately,  and  to  fix  its  value  in  dollars  and  cents, 
and  set  it  down  distinctly  in  figures  opposite  to  the  articles  re- 
spectively.    {Id.  §  5.) 

It  is  of  the  greatest  importance  to  all  persons  interested  in  the 
estate,  that  it  should  be  accurately  known  what  portion  of  it  goes 
to  the  heirs  as  real  property,  and  Avhat  to  the  executors  and  ad- 
ministrators as  assets  for  the  payment  of  debts  and  legacies,  to 
be  distributed  to  the  relatives  entitled  under  the  statute  of  dis- 
tributions. To  determine  this  question  it  is  first  necessary  to 
notice  the  exceptions  in  favor  of  the  widow  and  minor  children. 
These  excepted  articles  are  to  be  inserted  in  the  inventory,  without 
appraisal.  At  common  law  the  widow  was  entitled  to  bona  para- 
phernalia, to  the  exclusion  of  the  executor,  but  on  a  deficiency  of 
assets,  they  were  subject  to  the  payment  of  the  husband's  debts, 
except  as  far  as  her  necessary  apparel.  Her  claim,  however,  was 
preferred  to  a  legatee  of  the  husband.  (1  Wins.  Ex'rs,  646,  7. 
2  Burn's  E.  L.  649.)  It  is  believed  to  have  been  the  inten- 
tion of  the  legislature  to  include  the  paraphernalia  in  the  excep- 
tion which  will  now  be  considered.  The  statute  is  as  follows, 
though  parts  of  it  were  enacted  at  different  times,  commencing  as 
early  as  1824,  and  ending  in  1842.  "  Where  a  man  having  a 
family  shall  die,  leaving  a  widow,  or  a  minor  child  or  children,  the 
following  articles  shall  not  be  deemed  assets,  but  shall  be  included 
and  stated  in  the  inventory  of  the  estate,  without  being  appraised. 

1.  All  spinning  wheels,  weaving  looms  and  stoves  put  up  and 
kept  for  use  by  his  family  ; 

2.  The  family  bible,  family  pictures  and  school  books  used  by 
or  in  the  family  of  such  deceased  person  ;  and  books  not  exceed- 
ing in  value  fifty  dollars,  which  Avcre  kept  and  used  as  part  of 
the  family  library,  before  the  decease  of  such  person  ; 

3.  All  sheep  to  the  number  of  ten,  with  their  fleeces,  and  the 
yarn  and  cloth  manufactured  from  the  same  ;  one  cow  ;  two  swine, 
and  the  pork  of  such  swine ; 

4.  All   necessary  wearing   apparel,  beds,    bedsteads  and  bed- 


252  INVENTORY— EXEMPT  ARTICLES. 

dino- ;  necessary  cooking  utensils  ;  the  clothing  of  the  family  ;  the 
clothes  of  a  widow,  and  her  ornaments  proper  for  her  station ; 
one  table,  six  chairs,  six  knives  and  forks,  six  plates,  six  teacups 
and  saucers,  one  sugar  dish,  one  milk  pot,  one  teapot  and  six  spoons. 

The  said  articles  shall  remain  in  the  possession  of  the  widow,  if 
there  be  one,  during  the  time  she  shall  live  -with  and  provide  for 
such  minor  child  or  children.  When  she  shall  cease  to  do  so,  she 
shall  be  allowed  to  retain  as  her  own,  her  wearing  apparel,  her 
ornaments  and  one  bed,  bedstead  and  the  bedding  for  the  same  ; 
and  the  other  articles  so  exempted  shall  then  belong  to  such 
minor  child  or  children.  If  there  be  a  widow  and  no  such  minor 
child,  then  the  said  articles  shall  belong  to  such  widow. 

When  a  man  having  a  family  shall  die  leaving  a  widow  or  minor 
child  or  children,  these  shall  be  inventoried  by  the  appraisers  and 
set  apart  for  the  use  of  such  widow  and  child  or  children,  or 
for  the  use  of  such  child  or  children,  in  the  manner  above  provided, 
necessary  household  furniture,  provisions,  or  other  personal  prop- 
erty, in  the  discretion  of  said  appraisers,  to  the  value  of  not  ex- 
ceeding one  hundred  and  fifty  dollars,  in  addition  to  the  articles  of 
personal  property  now  exempt  from  appraisal,  by  the  foregoing 
section."     (3  R.  St.  170,  §§  9, 11,  5th  ed.) 

The  reason  for  inserting  the  exempted  articles  in  the  inventory 
is  to  afford  documentary  evidence  of  the  proper  disposition  of  the 
estate,  and  of  the  title  of  the  parties  to  whom  those  articles  belong. 
The  property  thus  set  apart  without  appraisal  is  not  subject  to 
taxation  against  the  estate  of  the  deceased. 

The  provisions  of  the  foregoing  statute  are  not  limited  to  cases 
where  the  deceased  was  a  resident  of  this  state.  Thus,  where  the 
intestate  died  on  his  way  to  this  country,  leaving  a  widow  and 
minor  children  in  Germany,  and  the  assets  left  on  board  the  vessel 
came  into  the  hands  of  the  public  administrator,  nothing  having 
been  set  apart  in  the  inventory  for  the  widow  and  children,  it  was 
held  by  the  surrogate  of  New  York,  that  the  inventory  should  be 
reformed  in  that  respect.  (Kapp  v.  The  Public  Administrator, 
2  Bradf.  258.) 

Nor  is  it  material  whether  the  widow  is  the  actual  mother  of  the 
minor  children ;  if  she  be  the  stepmother,  and  she  is  able  and 
willing  to  keep  up  the  family  circle  and  provide  suitably  for  the 


DISCRETION  OF  APPRAISERS.  253 

minor  children,  she  is  entitled  to  hold  the  exempt  articles  ;  and 
the  minor  children  who  leave  her,  contrary  to  her  wishes,  and 
without  any  fault  on  her  part,  are  not  entitled  to  take  those 
articles  from  her.     (Scojield  v.  Scofield,  6  Hill,  642.) 

The  claim  of  the  widow  under  the  exemption  laws,  does  not  de- 
pend on  the  question  whether  she  be  the  mother  of  children  or  not, 
or  whether  her  deceased  husband  left  children,  which  formed  a 
part  of  the  family,  at  his  decease.  A  man  who  has  a  wife  and 
other  relatives  residing  with  him  at  the  time  of  his  death,  besides 
servants,  although  without  children,  leaves  a  family  within  the 
meaning  of  the  act.     (Kain  v.  Fisher,  2  Seld.  597.) 

Nor  have  the  appraisers,  under  the  act  of  1842,  which  is  the  last 
section  cited  from  the  revised  statutes,  a  discretion  to  withhold 
setting  apart  the  furniture  and  provisions  to  the  value  of  one 
hundred  and  fifty  dollars,  if  there  be  that  amount  in  value  belonging 
to  the  estate.  As  they  have  no  right  to  deal  unjustly  to  the  other 
parties  interested  in  the  estate,  such  as  creditors,  legatees  or  next 
of  kin,  by  setting  apart  for  the  widow,  or  minor  children,  articles 
exceeding  in  value  the  one  hundred  and  fifty  dollars,  so  they  are 
not  warranted  in  refusing  altogether  to  set  apart  any  thing.  Their 
appraisement  is  not  conclusive,  but  may  be  reviewed,  examined  and 
corrected,  whether  the  error  be  in  favor  of  the  widow  or  against 
her.  (Applegate  v.  Cameron,  2  Bradf.  119.  Sheldon  v.  Bliss, 
4  Seld.  31.)  The  discretion  of  the  appraisers  is  not  an  arbitrary 
but  a  judicial  discretion.  It  has  reference  mainly  to  the  articles 
to  be  inventoried  and  set  apart  to  the  widow,  and  can  never  be 
referable  to  the  amount  when  the  personal  property  left  by  the 
deceased,  exceeds  in  value  one  hundred  and  fifty  dollars.  {Id-) 
If  there  be  various  articles  of  the  same  kind  belonging  to  the 
estate,  the  appraisers  have  a  discretion,  which  to  set  apart,  not 
exceeding  the  specified  value.  Or  they  may,  it  is  conceived,  if 
the  condition  of  the  estate  will  warrant  it,  set  off  to  her  the  one 
hundred  and  fifty  dollars  in  money,  in  lieu  of  those  articles,  or  a 
portion  in  furniture  or  other  articles,  and  the  residue  in  money. 
(Dai/ton's  Surrogate,  250.)  The  discretion  of  the  appraisers  may 
be  controlled  by  the  surrogate,  if  it  has  been  unreasonably  exercised. 

The  widow  and  minor  children  have  by  the  death  of  the  testator 
or  intestate,  a  mere  naked  right  to  the  exempt  articles.     The  legal 


254  EXEMPT  ARTICLES. 

title  vests  in  the  personal  representatives,  by  relation,  from  the 
time  of  the  death  of  their  former  owner.  Hence,  before  the 
articles  are  set  apart  by  the  appraisers,  the  legal  title  is  in  the 
executors  or  administrators,  and  no  action  will  lie  at  the  suit  of  the 
widow  against  the  executors  or  administrators  for  taking  posses- 
sion of  them.  ( Voelckner  v.  Hudson,  1  Sand.  >S.  C.  R.  215.) 
The  executors  or  administrators  are  bound  to  take  possession  of 
the  personal  estate,  and  the  appraisers  can  only  inventory  such 
as  is  exhibited  to  them  by  those  parties.  (2  R.  JS.  8,  §  82.) 
AVhen  the  exempted  articles  are  set  apai't  in  the  inventory  by  the 
appraisers,  what  was  before  a  mere  right  ripens  into  a  perfect 
title,  and  whoever  subsequently  interferes  with  the  property  with- 
out the  consent  of  the  owner  becomes  a  trespasser. 

It  is  not  usual  for  the  executors  or  administrators  to  dispossess 
the  widow  and  family  of  these  exempt  articles  antecedent  to  taking 
the  inventory.  They  are  usually  left  with  the  family  till  the  in- 
ventory is  taken.  It  is  not  perceived  that  the  executors  or  ad- 
ministrators incur  any  risk  in  doing  so. 

If  the  executors  refuse  to  set  off  to  the  widow  the  articles  ex- 
empt under  the  statute,  and  convert  into  money  the  articles  con- 
tained in  the  inventory,  the  surrogate  has  the  power  to  order  them 
to  pay  the  widow  a  sum  of  money  in  lieu  of  what  she  was  entitled 
to  receive  under  the  exemption  laws.  (Bliss v.  Sheldon,  7  Barb.  152, 
affirmed.  4  Seld.  31.)  The  power  conferred  upon  the  surrogate 
by  the  revised  statutes.  (2  R.  S.  154,  subd.  3.)  to  direct  and  control 
the  conduct,  and  settle  the  accounts  of  executors  and  administra- 
tors, is  deemed  ample  authority  for  that  officer  to  interfere  in 
that  manner.  The  court  of  appeals  held  in  the  last  mentioned  case, 
that  the  proceeds  of  the  sale  in  the  hands  of  the  executors,  consti- 
tuted a  trust  in  favor  of  the  widow,  to  the  extent  of  her  interest  in 
or  claim  upon  the  property  of  the  testator  under  the  statute. 
She  might,  said  Judge  Gardiner,  affirm  the  sale,  and  it  would  be 
the  duty  of  the  executors,  as  trustees,  to  pay  over  the  avails  to  the 
legal  and  equitable  proprietor.  If  they  refused,  the  surrogate  in 
virtue  of  his  power  to  control  their  conduct,  "  and  to  administer 
justice,  in  all  matters  relating  to  the  affairs  of  deceased  persons," 
could  compel  their  obedience. 


EXEMPT  ARTICLES— ELECTION.  255 

It  has  sometimes  been  claimed,  on  the  part  of  the  executors, 
that  the  widow  is  barred  of  her  right  to  the  exempt  articles  in 
consequence  of  a  marriage  settlement,  or  some  pecuniary  provis- 
ion in  the  will  of  the  testator.  On  this  subject  it  is  well  settled 
that  a  provision  in  the  will  of  a  husband  in  favor  of  the  wife,  will 
never  be  construed  by  implication  to  be  in  lieu  of  dower,  or  any 
other  interest  in  his  estate  given  by  law.  The  design  to  substi- 
tute one  for  the  other  must  be  unequivocally  expressed.  {Sheldon 
v.  Bliss,  4  Seld.  35.) 

The  right  to  the  exempt  articles,  like  a  right  to  dower  in  the 
real  estate  of  the  husband,  is  a  legal  right,  and  the  -wife  cannot  bo 
deprived  of  it  by  a  testamentary  provision  in  her  favor.  Nor  can 
she  be  put  to  her  election  between  her  statute  right  and  a  legacy, 
unless  the  latter  was  evidently  intended  by  the  testator  to  be  a  bar 
to  the  former,  and  that  intention  is  announced  in  express  terms 
or  by  necessary  implication.  (  WillaraVs  Equity  Juris.  546  to 
552,  where  the  cases  on  election  are  collected.)  Thus,  should  the 
testator  bequeath  to  his  wife  a  bed,  or  a  cow,  it  would  not  deprive 
her  of  the  bed  or  the  cow  to  which  she  is  entitled  by  law.  If 
there  were  cows  and  beds  enough,  she  would  take  as  well  under 
the  will  as  the  statute.  In  case  of  a  deficiency  of  assets  to  pay 
debts,  her  legacy  must  yield  to  the  claims  of  creditors,  but  her  ti- 
tle, under  the  statute,  is  paramount  to  such  a  claim.  In  this,  as 
well  as  some  other  respects,  the  exemption  is  more  favorable  to 
the  widow  than  the  common  law  was  to  her  right  to  bona  para- 
phernalia, which  Ave  have  seen  in  some  cases,  and  to  some  extent, 
yielded  to  the  demands  of  her  husband's  creditors. 

The  humane  provisions  in  favor  of  the  widow  and  minor  chil- 
dren of  a  deceased  householder,  were  first  introduced  into  our  stat- 
ute law  in  1824,  (L.  of  1824,  p.  32,  ch.  44,)  and  were  enlarged 
and  improved  at  the  revision  of  1830.  (2  R.  S.  83.)  They  were 
again  expanded  in  1842,  so  as  to  embrace  the  additional  one 
hundred  and  fifty  dollars.  {See  L.  of  1842,  ch.  157,  §  2.)  Prior 
to  1824,  there  was  no  exemption  in  favor  of  the  widow,  unless  her 
'paraphernalia  be  so  considered.  The  exemption  of  certain  arti- 
cles from  sale  on  execution,  and  from  distress  for  rent,  was  made 
a  few  years  earlier,  but  all  within  the  present  century. 

The  exemption  in  favor  of  the  widow  and  minor  children  is  a 


256  EXEMPT  ARTICLES. 

politic  as  well  as  benevolent  arrangement  to  provide,  as  far  as 
practicable,  for  keeping  up  the  family  state  during  the  minority 
of  the  children  of  a  deceased  father.  That  state  tends  in  many 
•ways  to  promote  the  happiness  of  the  children,  and  fit  them  to  be- 
come useful  members  of  society.  The  care  and  counsels  of  a 
mother  should  not  be  lightly  esteemed,  either  by  her  offspring  or 
by  those  who  enact  the  laws.  {Per  Bronson,  J.  in  Scofield  v. 
Scqfteld.  supra.)  Similar  provisions  exist  in  most  of  the  states. 
The  wisdom  of  weakening  the  extreme  grasp  of  the  creditor,  has 
been  felt  in  all  ages,  and  is  recognized  in  the  Mosaic  economy. 
{Deuteronomy  24,  v.  6.)  Public  policy  does  not  recpiire  that  the 
articles  in  question  should  be  yielded  to  the  claims  of  creditors. 
No  just  man  ever  trusted  another,  upon  the  strength  of  any  sup- 
posed right  of  stripping  his  widow  and  children,  after  his  death, 
of  the  few  articles  necessary  for  family  comfort  and  convenience. 

With  regard  to  the  final  disposition  of  the  exempt  articles,  the 
statute  is  explicit.  The  articles  are  not  deemed  assets.  They 
are  not,  therefore,  liable  to  the  claims  of  the  creditors  of  the  de- 
ceased. If  there  be  no  minor  child  or  children,  they  then  belong 
to  the  widow  alone,  and  are  subject  to  her  disposition.  {Kain  v. 
Fisher,  2  Seld.  597.     3  R.  S.  170,  5th  ed.) 

If  there  be  one  or  more  minor  children,  in  that  case  all  the  ar- 
ticles are  to  remain  in  the  possession  of  the  widow  during  the 
time  she  shall  live  with  and  provide  for  such  minor  child  or  chil- 
dren. When  she  ceases  to  do  so,  she  is  allowed  to  retain,  as  her 
own,  her  wearing  apparel,  her  ornaments,  and  one  bed,  bedstead, 
and  the  bedding  for  the  same  ;  and  the  other  articles,  so  exempted, 
then  belong  to  the  minor  child  or  children.  It  is  obvious  that 
there  are  many  ways  in  which  the  widow  may  cease  to  live  with 
and  provide  for  the  minor  child  or  children.  She  may  refuse  ab- 
solutely to  perform  this  condition,  or,  agreeing  to  perform  it,  she 
may  so  conduct  herself  towards  the  children  that  it  would  be  un- 
safe or  improper  for  them  to  live  with  her.  In  either  of  these 
cases,  there  can  be  no  reasonable  doubt  that  she  would  forfeit  the 
provision.  {Scqfield  v.  Scqfteld,  supra.)  She  may  be  willing 
to  reside  with  the  children  and  make  ample  and  suitable  provision 
for  their  support,  and  the  children  refuse  to  live  with  her,  and  go 
elsewhere  to  reside  without  fault  on  her  part.     In  such  a  case  the 


EXEMPT  ARTICLES.  257 

supreme  court  thought  she  was  still  entitled  to  retain  the  arti- 
cles.    {Id.) 

But  suppose  the  minor  child  dies  while  living  with  and  support- 
ed by  the  widow,  the  question  then  will  arise  whether  those  articles 
should  belong  to  the  widow,  or  the  personal  representative  of  the 
minor,  who  may  be  a  different  person  from  the  widow,  if  she  was  the 
stepmother.  The  answer  to  this  question  turns  upon  the  inquiry, 
whether  the  contingency  of  there  being  no  minor  child  has  refer- 
ence to  the  time  of  the  death  of  the  testator  or  intestate,  or  is  in- 
definite in  its  application.  In  the  latter  case,  the  articles  would 
belong  to  the  widow. 

The  statute  does  not  state  what  becomes  of  the  articles,  where 
the  minors  having  lived  with  and  been  supported  by  the  widow, 
during  their  minority,  become  of  age  and  voluntarily  leave  her, 
without  fault  on  her  part.  The  contingency  when  they  shall  be- 
long to  the  minor  child  or  children  happens  only  when,  during 
their  minority,  they  cease,  without  their  own  fault,  from  being 
members  of  her  family.  Though  this  question  has  not  yet  been 
decided  to  my  knowledge,  and  it  therefore  becomes  us  to  antici- 
pate, with  diffidence,  the  ultimate  judgment  of  the  courts  upon 
it,  it  is  nevertheless  believed  that  if  the  widow  still  continues  to 
keep  house  after  the  minors  become  of  age,  and  has  not  forfeited 
her  right  by  previous  misconduct,  she  is  still  entitled  to  the  pos- 
session of  the  property.  It  is  not  probable  that  the  legislature 
intended  to  break  up  the  family  when  the  children  became  of  age. 
(See  Scofield  v.  Scqfield,  supra.)  Although  the  title  of  the 
widow  is  a  defeasible  one,  it  is  inferrible  from  what  was  said  by 
the  court  in  the  last  mentioned  case,  that  it  can  only  be  defeated 
by  some  Avrongful  act  on  her  part. 

On  the  death  of  the  widow,  or  the  minor  children  during  their 
minority  or  afterwards,  the  exempt  articles  do  not  fall  back  into 
the  estate  of  the  deceased  husband,  but  go  to  the  personal  repre- 
sentatives of  their  last  owner.  (For  forms  in  taking  the  inventory, 
sec  Appendix,  55,  56.) 

Having  thus  noticed,  sufficiently  at  large,  the  subject  of  the 
exempt  articles,  and  which  it  will  be  remembered  are  not  assets  of 
the  deceased  husband,  but  arc  to  be  included  and  stated  in  the 

33 


258  INVENTORY— FIXTURES. 

inventory  of  the  estate,  -without  being  appraised,  we  proceed  to 
notice  the  further  steps  to  be  taken  by  the  executors  or  admin- 
istrators, and  the  appraisers.  At  the  time  and  place  appointed 
in  the  notice,  and  it  is  presumed  at  such  subsquent  times  and 
places  as  shall  be  appointed  by  adjournment,  the  appraisers,  in 
the  presence  of  such  of  the  next  of  kin,  legatees  or  creditors  of 
the  testator  or  intestate  as  shall  attend,  proceed  to  estimate  and 
appraise  the  property  which  shall  be  exhibited  to  them,  by  the 
executors  or  administrators,  or  under  their  direction,  and  are  re- 
quired to  set  down  each  article  separately,  with  the  value  thereof 
in  dollars  and  cents,  distinctly  in  figures,  opposite  to  the  articles 
respectively.     (2  R.  S.  82,  §  5.     3  R.  8.  169,  5th  ed.) 

The  requirement  that  each  article  must  be  separately  stated  and 
appraised,  must  have  a  reasonable  interpretation.  Such  articles 
as  are  usually  kept  together,  and  where  there  is  a  conventional 
unity  of  several  things  of  the  same  sort,  should  be  stated  together. 
Thus,  a  yoke  of  oxen,  a  span  of  horses,  for  example,  when  matched 
and  generally  kept  together,  the  several  volumes  of  the  same 
work,  and  the  like,  should  be  appraised  in  the  same  way  in  which 
they  were  treated  in  the  family  of  the  deceased.  The  law  does 
not  require  the  breaking  up  of  such  conventional  arrangements. 
Though,  in  the  sale  of  these  articles,  the  executors  and  administra- 
tors must  consult  the  interest  of  the  estate,  and  are  not  forbidden 
to  separate  matched  horses  or  oxen,  if  the  sale  of  each  separately 
will  be  most  advantageous  to  the  estate. 

Previous  to  the  adoption  of  the  revised  statutes  in  1830,  there 
was  some  uncertainty  in  the  law,  and  a  fluctuation  in  the  decisions 
as  to  the  relative  rights  of  the  executors  or  administrators,  on  the 
one  hand,  and  the  heirs  at  law  on  the  other,  with  respect  to  annex- 
ations to  the  freehold.  There  was  supposed  to  be  a  distinction, 
in  relation  to  what  belonged  to  the  realty,  as  between  landlord 
and  tenant,  and  as  between  the  heir  at  law  and  the  personal  rep- 
resentative. It  was  also  supposed  that  the  outgoing  tenant'  might 
be  permitted  to  remove  fixtures  of  a  particular  description,  placed 
by  him  upon  the  premises  for  a  special  purpose,  which  as  between 
the  heirs  at  law  and  the  personal  representatives  of  the  owner  of 
the  freehold  would  have  descended  to  the  heirs.  {House  v.  House, 
10  Paige,  1G3.) 


INVENTORY— FIXTURES.  259 

The  legislature  intended  to  put  the  executor  or  administrator 
upon  the  same  footing  with  a  tenant  as  to  the  rights  to  fixtures. 
And  they  intended  to  settle  some  other  questions,  and  give  more 
symmetry  to  the  law.  They,  therefore,  enacted  certain  legal  prop- 
ositions, derived  from  the  decisions  of  the  courts  and  the  elementa- 
ry writers,  which  it  was  supposed  would  remove  all  disputes  for 
the  future,  (See  Revisers'  notes,  3  R.  8.  638,  639,  2d  ed.)  These 
propositions  as  enacted,  assumed  the  following  form : 

"  The  following  property,  it  was  enacted,  shall  be  deemed  assets, 
and  shall  go  to  the  executors  or  administrators,  to  be  applied  and 
distributed  as  part  of  the  personal  estate  of  their  testator  or  intes- 
tate, and  shall  be  included  in  the  inventory  thereof. 

1.  Leases  for  years  ;  lands  held  by  the  deceased  from  year  to 
year  ;  and  estates  held  by  him  for  the  life  of  another  person ; 

2.  The  interest  which  may  remain  in  the  deceased  at  the  time 
of  his  death,  in  a  term  for  years,  after  the  expiration  of  any  estate 
for  years  therein,  granted  by  him  or  any  other  person  ; 

3.  The  interest  in  lands  devised  to  an  executor  for  a  term  of 
years,  for  the  payment  of  debts  ; 

4.  Things  annexed  to  the  freehold,  or  to  any  building,  for  the 
purpose  of  trade  or  mauufacture,  and  not  fixed  into  the  wall  of  a 
house  so  as  to  be  essential  to  its  support ; 

5.  The  crops  growing  on  the  land  of  the  deceased  at  the  time  of 
his  death  ; 

6.  Every  kind  of  produce  raised  annually  by  labor  and  cultiva- 
tion, excepting  grass  growing  and  fruit  not  gathered ; 

T.  Rent  reserved  to  the  deceased,  which  had  accrued  at  the 
time  of  his  death  ; 

8.  Debts  secured  by  mortgages,  bonds,  notes  or  bills  ;  accounts, 
money  and  bank  bills,  or  other  circulating  medium,  things  in  action 
and  stock  in  any  company,  whether  incorporated  or  not ; 

9.  Goods,  wares,  merchandise,  utensils,  furniture,  cattle,  pro- 
visions, and  every  other  species  of  personal  property  and  eifects, 
not  hereafter  excepted."     {See  2  R.  &  82,  §  6.) 

Having  thus  enacted  what  are  assets,  it  proceeded  to  declare, 
in  general  terms,  what  are  not.  Thus,  §  7 :  Things  annexed  to 
the  freehold  or  to  any  building,  shall  not  go  to  the  executor,  but 
shall  descend  with  the  freehold  to  the  heirs  or  devisees,  except 


260  INVENTORY— FIXTURES. 

such  fixtures  as  are  mentioned  in  the  fourth  subdivision  of  the 
last  section.  And,  by  way  of  greater  caution,  they  added  §  8 : 
The  right  of  an  heir  to  any  property,  not  enumerated  in  the  pre- 
ceding sixth  section,  which,  by  the  common  law  would  descend  to 
him,  shall  not  be  impaired  by  the  general  terms  of  that  section. 

Although  the  foregoing  specifications  were  drawn  by  learned 
men,  with  great  care,  yet  it  has  already  been  found  that  numerous 
questions  arise  calling  for  judicial  construction,  and  an  occasional 
resort  to  the  old  authorities  for  illustration  is  found  to  be  necessa- 
ry. It  is  impossible,  from  the  imperfection  of  human  language, 
and  the  constant  fluctuation  in  the  affairs  of  an  active  and  enlight- 
ened community,  to  anticipate  every  difficulty,  and  to  guard 
against  it. 

In  House  v.  House,  (10  Paige,  162,  164,)  the  administrators 
claimed  the  mill  stones,  bolts  and  other  machinery  in  a  flouring 
mill,  as  personal  estate,  under  the  4th  subdivision  above  specified, 
considering  them  as  not  essential  to  the  support  of  the  walls  of  the 
mill.  By  an  extremely  literal  construction  of  the  act,  it  would  be 
difficult  to  resist  the  claim  upon  that  ground,  and,  perhaps,  differ- 
ent courts  might  arrive  at  different  conclusions  on  the  subject. 
But  it  was  held,  and  probably  rightly,  that  fixtures  of  this  char- 
acter are  not  only  convenient  but  essential  to  the  proper  enjoy- 
ment of  the  inheritance  ;  and  are,  therefore,  as  much  a  part  of  the 
freehold  as  the  building  and  water  power,  which,  with  them,  con- 
stitute the  mill.  The  owner  of  a  pew  in  a  church  may,  and  often 
does,  have  a  lease  of  it,  in  which  he  is  bound  to  pay  certain  rent, 
and,  perhaps,  other  assessments.  The  question  has  arisen  whether 
the  interest  in  the  pew  goes  to  the  executors  or  administrators,  or 
descends  as  real  estate  to  the  heirs  at  law.  The  peculiar  quality 
of  that  species  of  property  has  often  been  the  subject  of  investiga- 
tion in  our  courts,  and  the  weight  of  argument,  as  well  as  author- 
ity, seems  to  be  in  favor  of  considering  the  right  to  the  pew  as  a 
right  indeterminate  as  to  its  duration,  and  springing  out  of  the 
land,  and  so  belonging  to  the  heir  rather  than  the  personal  repre- 
sentatives. {Matter  of  Havens,  4  Bradf.  7,  where  the  cases  are 
collected  and  reviewed.) 

Grass  growing,  and  fruit  not  gathered,  at  the  death  of  the  tes- 
tator, go  to  the  heir  and  not  the  personal  representatives.     This 


INVENTORY— RELEASE  OF  DEBTS.  261 

is  made  an  exception  to  the  general  proposition,  that  the  growing 
crops  belong  to  the  personalty.     {Kain  v.  Fisher,  2  Seld.  597.) 

The  statute  contains  some  practical  directions  with  respect  to 
the  manner  of  stating  the  assets.  Thus,  it  is  required  that  the 
inventory  shall  contain  a  particular  statement  of  all  bonds,  mort- 
gages, notes  and  other  securities  for  the  payment  of  money  be- 
longing to  the  deceased,  which  arc  known  to  the  executor  or  ad- 
ministrator, specifying  the  name  of  the  debtor  in  each  security  ; 
the  date  ;  the  sum  originally  payable  ;  the  indorsements  thereon, 
if  any,  with  the  dates  ;  and  the  sum  which,  in  the  judgment  of 
the  appraisers,  may  be  collectable  on  each  security.  (2  R.  S. 
84,  §  11.)  This  is  a  substitute  for  the  requirement  at  common 
law,  to  distinguish  debts  which  are  sperate  from  those  which  are 
doubtful  or  desperate.  ( Toller,  248.)  The  inventory  must  also 
contain  an  account  of  all  money,  whether  in  specie  or  bank  bills, 
or  other  circulating  medium  belonging  to  the  deceased,  which  shall 
have  come  to  the  hands  of  the  executor  or  administrator ;  and  if 
none  shall  have  come  to  his  hands,  that  fact  must  be  so  stated  in 
the  inventory.     (2  R.  S.  84,  §  12.) 

Formerly  the  appointment  of  the  testator's  debtor  as  an  execu- 
tor operated  as  a  release  of  the  debt.  {Marvin  v.  Stone,  2  Cowen, 
809.  Gardner  v.  Miller,  19  John.  188.)  The  discharge  was  im- 
plied from  the  act  of  appointment.  This  rule  is  noAV  abrogated. 
The  claim  which  the  testator  had  against  the  executor,  must  bo 
included  among  the  credits  and  effects  of  the  deceased,  in  the  in- 
ventory, and  the  executor  is  made  liable  for  the  same,  as  for  so 
much  money  in  his  hands,  at  the  time  such  debt  or  demand  be- 
comes due  ;  and  he  is  required  to  distribute  the  same  in  the  pay- 
ment of  debts  and  legacies,  and  amongst  the  next  of  kin,  as  part  of 
the  personal  estate  of  the  deceased.     {Id.  §  13.) 

But  the  foregoing  section  does  not  apply  to  an  express  discharge 
by  the  testator  of  any  debt  or  demand  which  he  may  have  against 
the  executor  or  any  other  person.  At  common  law,  it  was  compe- 
tent for  the  testator  to  discharge  such  claim  by  an  express  provis- 
ion in  his  will.  This  has  been  changed  by  the  revised  statutes, 
and  it  is  enacted  that  such  discharge  shall  not  be  valid  as  against 
the  creditors  of  the  deceased  ;  but  shall  be  construed  only  as  a 
specific  bequest  of  such  debt  or  demand  ;  and  the  amount  thereof 


2G2  INVENTORY— OATH  TO  SAME. 

is  required  to  be  included  in  the  inventory  of  the  credits  and 
effects  of  the  deceased,  and  shall,  if  necessary,  be  applied  to  the 
payment  of  his  debts ;  and  if  necessary  for  that  purpose,  shall  be 
paid  in  the  same  manner  and  proportion  as  other  specific  legacies. 
(Id.  §  14.)  The  legislature  thus  adopted  as  a  general  rule  of  law, 
a  principle  which  equity  had  always  struggled  hard  to  enforce.  (See 
Gardner  v.  Miller,  supra,  and  Marvin  v.  Stone,  supra.) 

Upon  the  completion  of  the  inventory,  duplicates  of  it  must  be 
made  and  signed  by  the  appraisers,  one  of  which  is  to  be  retained 
by  the  executors  or  administrators,  and  the  other  returned  to  the 
surrogate,  within  three  months  from  the  date  of  the  letters  testa- 
mentary  or  of  administration.  The  surrogate  can,  for  a  reasonable 
cause,  extend  the  time  for  returning  an  inventory,  not  exceeding 
four  months.  The  statute  requiring  an  inventory  to  be  returned 
within  a  limited  time,  being  directory  merely,  an  inventory  made 
after  the  expiration  of  the  time,  is  equally  valid,  and  should  be 
received,  on  being  returned  to  the  surrogate. 

Upon  returning  the  inventory,  the  executors  or  administrators 
are  required  to  take  and  subscribe  an  oath,  before  the  surrogate  ; 
or,  if  he  be  absent  from  the  county,  or  incapable  from  sickness,  or 
otherwise,  of  transacting  business,  or  his  office  be  vacant,  then  be- 
fore a  judge  of  the  county  court  of  such  county  ;  stating  that  such 
inventory  is  in  all  respects  just  and  true  ;  that  it  contains  a  true 
statement  of  all  the  personal  property  of  the  deceased  which  has 
come  to  the  knowledge  of  the  executor  or  administrator,  and  par- 
ticularly of  all  money,  bank  bills,  and  other  circulating  medium  be- 
longing to  the  deceased,  and  of  all  just  claims  of  the  deceased  against 
such  executor  or  administrator  according  to  the  best  of  his  knowl- 
edge. (2  R.  S.  85.)  This  oath  must  be  indorsed  upon  or  annexed 
to  the  inventory,  and  the  latter  must  be  filed  by  the  surrogate  and 
preserved  among  the  papers  of  his  office.  By  a  subsequent  law, 
the  oath  of  office  of  executors  and  administrators,  and  the  oath  of 
the  appraisers,  administrators  and  executors,  in  relation  to  the  in- 
ventory, are  permitted  to  be  administered  by  the  surrogate,  or  by 
any  commissioner  of  deeds,  or  judge  of  the  county  courts.  (L.  of 
1837,  ch.  460,  *  59.  3  R.  S.  171,  §  18.)  For  form  of  oath,  see 
Appendix,  No.  57.) 


COMPELLING  RETURN  OF  INVENTORY.  2G3 


Section  III. 

Of  the  method  of  compelling  a  return  of  an  inventory  when  the 
executor  or  administrator  omits  that  duly,  and  herein  of  com- 
pelling a  further  inventory. 

In  general  it  is  a  fair  presumption  that  executors  and  admin- 
istrators -will  discharge  the  duty  imposed  upon  them  by  law,  of 
taking  and  returning  an  inventory.  They  will  be  led  to  do  it  as 
well  from  a  regard  to  their  own  safety,  as  from  their  respect  to  the 
injunctions  of  law.  It  was,  however,  foreseen  that  occasions  might 
arise,  when  this  duty  might  be  neglected.  It  is  accordingly  pro- 
vided that  if  an  executor  or  administrator  shall  neglect  or  refuse 
to  return  an  inventory,  within  the  time  allowed  for  that  purpose, 
the  surrogate  shall  issue  a  summons  requiring  him  at  a  short  day, 
therein  to  be  appointed,  to  appear  before  him  and  return  an  inven- 
tory according  to  law,  or  show  cause  why  an  attachment  should 
not  be  issued  against  him.     (2  li.  S.  85,  §  17.) 

From  the  imperative  language  of  the  section  it  would  seem  that 
the  surrogate  can  issue  this  summons  on  his  own  motion,  without 
an  application  from  a  party  having  an  interest  in  the  estate.  It 
is  said  by  Sir  John  Nicholl  in  Phillips  v.  Vig?iel,  (1  Phill.  240,) 
that  the  prerogative  court  may,  and  in  some  instances  does,  for 
the  protection  and  security  of  the  parties  interested,  require,  ex 
officio,  an  inventory  to  be  exhibited ;  and  although  the  court  does 
not  exact  this,  in  all  cases,  still  it  always  will,  when  the  party 
having  an  interest  in  the  property  applies  for  it.  In  Thomson  v. 
Thomson,  (1  Bradf  24,)  the  surrogate  of  the  city  and  county  of 
New  York  held  to  the  same  doctrine.  Although  admitting  his 
power,  on  his  own  motion,  to  enforce  the  return  of  an  inventory, 
after  three  months  from  the  issue  of  letters,  he  admitted  that  it 
was  not  usual  to  do  so,  unless  at  the  intervention  of  a  party  in 
interest. 

The  time  limited  for  the  return  of  such  summons,  and  the 
number  of  days  service,  previous  to  its  return,  are  left  to  the  dis- 
cretion of  the  surrogate.  The  time  between  the  service  and  the 
return  should  be  sufficiently  long  to  enable  the  executors  or  ad- 


264  COMPELLING  RETURN  OF  INVENTORY. 

minis trators  to  give  the  requisite  notices  and  to  take  the  inventory. 
Like  other  process,  the  attachment  must  be  founded  upon  an  order, 
entered  in  the  minute  book ;  be  issued  under  the  seal  of  the  court ; 
and  be  tested  in  the  name  of  the  officer  by  whom  it  is  issued. 
(2  11.  >S*.  222.)  The  attachment  may  be  issued  to  any  county  in 
the  state,  and  may  be  executed  in  any  other  county,  as  well  as 
that  where  the  surrogate  resides.  {The  People  v.  Pelham, 
14  Wend.  48.) 

Although  the  18th  section  provides  that  the  surrogate  shall 
issue  an  attachment  against  the  executor  or  administrator,  if  after 
personal  service  of  such  summons  he  shall  not,  by  the  day  appoint- 
ed, return  the  inventory  on  oath,  or  obtain  further  time  to  return 
the  same,  and  commit  him  to  the  common  jail  of  the  county,  there 
to  remain  until  he  shall  return  the  said  inventory,  it  is  still  obvious 
that  the  defaulting  executor  or  administrator  is  entitled  to  show 
cause  against  such  order.  He  may  show  that  the  party  on  whose 
motion  the  attachment  is  issued  has  no  interest  in  the  estate,  either 
as  creditor,  legatee  or  next  of  kin.  If  the  estate  has  been  settled 
to  the  satisfaction  of  the  parties  interested  in  it,  the  court  will  not 
order  an  inventory  to  gratify  the  idle  curiosity  of  any  body.  So 
lapse  of  time  sufficient  to  raise  the  presumption  that  the  estate 
has  been  fully  administered  will  be  a  sufficient  answer  to  the  ap- 
plication. {Thomson  v.  Thomson,  1  Bradf.  24.  Bowles  v. 
Harvey.  4  Hagg.  241.     Higgins  v.  Higgms,  4  id.  242.) 

If  the  defaulting  executor  or  administrator  fails  to  show  any 
cause,  or  sufficient  cause  to  the  contrary,  the  alternative  in  the  at- 
tachment requires  him  to  be  committed  to  the  common  jail  of  the 
county,  there  to  remain  until  he  shall  return  such  inventory. 
(2  R.  S.  85.)  A  party  thus  committed  is  not  entitled  to  the  liberty 
of  the  yard,  but  must  be  kept  in  close  custody.  He  is,  however, 
entitled  to  be  discharged  by  the  surrogate  or  a  justice  of  the  su- 
preme court  on  his  delivering  upon  oath,  all  the  property  of  the 
deceased  under  his  control,  to  such  person  as  shall  be  authorized 
by  the  surrogate  to  receive  it.     (3  R.  S.  172,  §  24,  5th  ed.) 

Should  it  happen  that  the  summons  cannot  be  served  personally 
by  reason  of  the  executor  or  administrator  absconding  or  concealing 
himself,  or  if  after  being  committed  to  prison,  the  executor  or  admin- 
istrator shall  neglect  for  thirty  days  to  make  and  return  such  inven- 


COMPELLING  RETURN  OF  INVENTORY.  2G5 

tory,  the  surrogate  is  then  authorized  to  issue,  under  his  seal  of 
office,  a  revocation  of  the  letters  testamentary  or  letters  of  admin- 
istration, before  granted,  reciting  therein  the  cause  of  such  revoca- 
tion, and  to  grant  letters  of  administration  of  the  goods,  chattels 
and  effects  of  the  deceased,  unadministered,  to  the  person  entitled 
thereto  (other  than  such  executor  or  administrator)  in  the  samo 
manner  as  original  letters  of  administration  or  letters  testamen- 
tary. (2  R.  S.  85,  §  19.)  The  effect  of  this  grant  will  be  to 
supersede  all  former  letters,  and  to  deprive  the  former  executor  or 
administrator  of  all  power,  authority  and  control  over  the  personal 
estate  of  the  deceased,  and  entitle  the  person  so  appointed  to  take, 
demand  and  receive  the  goods  and  effects  of  the  deceased,  wherever 
the  same  may  be  found.    (Id.  §  20.) 

The  effect  of  the  foregoing  enactments  is  that  within  the  first 
thirty  days  after  the  commitment  of  the  executor  or  administrator, 
the  defaulting  party,  on  making  and  returning  an  inventory,  will 
be  entitled  to  a  discharge.  If  he  fails  to  do  so  within  the  thirty 
days  he  can  no  longer  do  so,  but  is  liable  to  be  superseded,  and 
can  then  be  discharged  only  on  delivering  up  upon  oath  the  prop- 
erty of  the  deceased  under  his  control,  to  the  person  authorized 
by  the  surrogate  to  receive  it.  His  person  cannot  be  held  for  the 
costs  ;  but  it  is  believed  these  may  be  obtained  by  the  decree  of 
the  surrogate,  as  in  other  cases  of  contest,  or  by  an  action  upon 
the  administration  bond. 

The  failing  to  return  the  inventory  as  required  may  have  oc- 
casioned an  injury  to  the  estate  of  the  deceased ;  the  estate  may 
also  have  sustained  injuries  by  reason  of  the  acts  and  omissions  of 
the  executor  or  administrator,  and  by  reason  of  his  maladminis- 
tration. To  provide  for  these  contingencies,  it  is  enacted  that  in 
every  such  case  of  revocation,  and  whenever  directed  by  the  sur- 
rogate, the  bond  give*  by  the  former  executor  or  administrator 
shall  be  prosecuted,  and  the  money  collected  thereon  be  deemed 
assets  in  the  hands  of  the  person  to  whom  such  subsequent  letters 
shall  have  been  issued.     (Id.  §  21.) 

The  duty  of  making  and  returning  an  inventory  is  deemed  of  so 
much  importance  that  any  one  or  more  of  the  executors  or  admin- 
istrators, on  the  neglect  of  the  others  may  return  it ;    and  those 
neglecting,  are  forbidden  thereafter  to  interfere  with  the  adminis- 
34 


260  FURTHER  INVENTORY. 

tration,  or  have  any  power  over  the  personal  estate  of  the  deceased; 
but  the  one  so  returning  an  inventory  has  the  whole  administra- 
tion, until  the  delinquent  returns  and  verifies  an  inventory  accord- 
ing to  law.     {Id.  §  23.) 

A  mere  technical  breach  of  duty  by  not  returning  an  inventory 
at  the  day  required,  unattended  with  actual  damage,  will  not  justify 
the  surrogate  in  ordering  a  prosecution  of  the  bond.  ( The  People 
v.  McDonald,  2  Coiven,  181.) 

It  may  well  happen,  that  after  the  making  and  return  of  an  in- 
ventory, personal  property  or  assets  of  the  deceased  not  mentioned 
in  any  inventory  already  made,  may  come  to  the  possession  or 
knowledge  of  the  executor  or  administrator.  If  his  power  over  the 
subject  were  exhausted  by  making  the  first  inventory,  he  could 
neither  make  or  be  compelled  to  make  another.  But  the  law  has 
not  been  thus  regardless  of  the  rights  of  the  parties.  The  exec- 
utor or  administrator,  in  the  case  supposed,  is  required  to  cause 
the  newly  discovered  assets  to  be  appraised  and  an  inventory 
thereof  to  be  made  and  returned  within  two  months  after  the  dis- 
covery of  the  property  ;  and  if  he  fails  to  do  so,  the  making  of 
such  inventory  and  return  may  be  enforced,  in  the  same  manner 
as  in  the  case  of  the  first  inventory.  (2  R.  IS.  86,  §  24.)  The 
proceedings  in  taking  the  supplementary  inventory  are  the 
same,  mutatis  mutandis,  as  in  taking  the  original  inventory ; 
and  the  mode  of  compelling  such  returns  will  not  vary  essentially 
from  that  pursued  in  compelling  the  return  of  the  first  inventory. 
The  consequences  of  neglect  and  refusal  are  the  same  in  all  cases. 
These  proceedings  may  be  repeated  from  time  to  time,  as  often  as 
additional  property  may  be  discovered. 

Although  in  the  case  of  an  estate  undoubtedly  solvent,  where  all 
the  parties  entitled  in  distribution,  as  legatees  or  kindred  are  of 
full  age,  and  amicably  settle  with  the  executors  or  administrators 
their  claims  against  the  estate,  the  return  of  an  inventory  need  not 
be  compelled,  yet  it  is  believed,  as  a  general  rule,  it  is  for  the  in- 
terest and  safety  oft  he  personal  representatives  to  fulfill  their  duty 
in  this  respect,  which  the  statute  enjoins.  Should  it  become 
necessary  to  resort  to  the  real  estate  of  the  deceased  to  meet 
unexpected  debts,  in  consequence  of  the  deficiency  of  personal 
assets,    nu    application  for    that   purpose    can    be    made   to    the 


OF  COLLECTING  TIIE  EFFECTS.  267 

surrogate,  until  after  an  inventory  of  the  estate  of  the  deceased 
shall  have  been  made  and  returned.  It  is  better  for  all  parties; 
that  the  inventory  should  be  made  within  the  time  prescribed  by 
law,  than  that  it  should  be  deferred  till  a  much  later  period. 

Again,  the  provisions  of  the  act  entitled,  "  Of  suits  by  and 
against  executors  and  administrators,"  are  predicated  on  the  sup- 
position that  an  inventory  is  usually,  if  not  always  returned.  The 
14th  section  declares  the  effect  of  the  inventory  when  given  in 
evidence  under  a  plea  of  plene  administravit,  making  it  prima 
facie  evidence  only,  and  allowing  either  party  to  explain  or  rebut 
it  by  proof.  (2  R.  S.  447  to  449.  Marre  v.  Gonochio,  2  Bradf 
165.  Montgomery  v.  Dunning,  Id.  220.)  For  forms  under 
this  section,  see  Appendix,  No.  62  to  68.) 

Section  IV. 

Of  collecting  the  effects,  and  herein  of  the  power  of  disposing 

of  them. 

It  is  the  duty  of  an  executor  or  administrator,  after  having  ob- 
tained letters  and  returned  an  inventory,  and,  indeed,  at  an  earli- 
er period,  to  reduce  to  possession  all  the  effects  of  the  deceased, 
which  belong  to  the  personal  representatives.  (2  Bl.  Com.  510, 
512.  2  Kent's  Com.  415.)  He  is  to  do  this  with  reasonable  dili- 
gence. He  may  thus  be  required  to  revive  judgments  obtained 
by  the  deceased,  in  his  lifetime,  and  make  himself  a  party  to  pend- 
ing actions.  But  as  these  proceedings  belong  more  appropriately 
to  the  practice  of  other  courts,  and  do  not  appertain  to  that  of 
surrogates'  courts,  the  reader  is  referred,  for  a  full  consideration  of 
the  manner  this  duty  is  performed,  to  works  devoted  to  that  subject. 

When  the  executor  or  administrator  discovers  that  the  debts, 
and,  in  case  of  a  will,  that  the  legacies  cannot  be  paid  without  a 
sale  of  the  personal  estate  of  the  deceased,  he  is  required  to  cause 
so  much  of  it  to  be  sold  as  may  be  necessary.  This  sale  may  be 
public  or  private,  and,  except  in  the  city  of  New  York,  may  be  on 
credit,  not  exceeding  one  year,  with  approved  security.  The  ex- 
ecutor or  administrator  is  not  responsible  for  any  loss  happening 
on  such  sale,  when  made  in  good  faith  and  with  ordinary  prudence. 
(2  R.  8.  87,  §  25.) 


2G8  DISPOSING  OF  EFFECTS. 

The  statute  has  a  wise  and  benevolent  provision,  that  in  making 
such  sales  such  articles  as  are  not  necessary  for  the  support  and 
subsistence  of  the  family  of  the  deceased,  or  as  are  not  specifically 
bequeathed,  shall  be  first  sold ;  and  articles  so  bequeathed  shall 
not  be  sold,  until  the  residue  of  the  personal  estate  has  been  ap- 
plied to  the  payment  of  debts.     {Id.  26.) 

It  sometimes  happens  that  a  doubtful  claim  will  be  lost  by  a  too 
rigid  adherence  to  extreme  rights.  The  hazard  may  arise  from 
the  uncertainty  of  the  facts,  or  the  law  of  the  case,  or  from  the 
questionable  ability  of  the  party  against  whom  it  is  made.  Such 
cases  are  now  provided  for  by  the  act  of  1847,  ch.  80,  §  1.  (3  R.  S. 
174,  5th  ed.)  By  this  act,  executors  or  administrators  may  be 
authorized,  by  the  surrogate  or  other  officer  by  whom  his  duties 
are  discharged,  in  the  county  where  their  letters  were  issued,  on  ap- 
plication and  good  and  sufficient  cause  shown  therefor,  and  on  such 
terms  as  the  surrogate  or  other  officer  shall  approve,  to  compro- 
mise or  compound  any  debt  or  claim  belonging  to  the  estate  of  their 
testator  or  intestate.  This  proceeding  is  necessarily  ex  parte,  and 
requires  to  be  carefully  watched  by  the  surrogate,  lest,  by  a  col- 
lusion between  the  debtor  and  the  executor  or  administrator,  the 
interest  of  the  estate  may  be  unjustly  prejudiced.  The  statute 
has  therefore  properly  provided,  that  nothing  therein  contained 
shall  prevent  any  person  interested  in  the  final  settlement  of  the 
estate  from  showing  that  such  debt  or  claim  was  fraudulently  or 
negligently  compromised  or  compounded.     {Id.  §  2.) 

The  foregoing  provisions,  although  they  leave  the  compromise 
at  the  risk  of  the  executor  or  administrator,  in  some  respects,  are 
a  relaxation  of  the  rigor  of  the  law,  applicable  to  persons 
acting  in  a  fiduciary  capacity.  In  the  country,  with  ordinary 
care  on  the  part  of  the  executors  or  administrators,  and  a  reasona- 
ble supervision  of  the  surrogate,  there  will  be  little  danger  of  loss 
from  a  sale  on  a  credit  even  with  personal  security. 

The  right  of  an  executor  or  administrator  to  dispose  of  the  per- 
sonal estate  of  the  deceased,  is  not  limited  to  the  payment  of  debts 
and  legacies,  and  is  not  derived  from  the  25th  section  of  chapter  6. 
(2  R.  S.  87.)  It  may  be  necessary  to  sell  the  assets  in  order  to 
make  distribution  in  the  cases  of  intestacy.  The  object  of  that 
section  was  to  prescribe  the  terms  of  credit  and  security,  and  the 
manner  of  selling,  as  whether  it  should  be  public  or  private.     The 


FUNERAL  EXPENSES.  2G9 

right  of  alienation  the  executor  derives  from  the  will  and  probate, 
and  the  administrator  from  his  appointment ;  and  both,  probably, 
have  relation  to  the  time  of  the  death  of  the  testator.  The  assets 
are,  therefore,  at  no  time  without  an  owner,  either  actual  or  by  in- 
tendment of  law.  The  jus  disponendi  is  a  necessary  incident  of 
owne  rship.  whether  such  ownership  be  absolute  or  in  aider  droit* 
The  property  may  be  of  a  perishable  nature,  or  it  may  greatly  de- 
teriorate in  value  if  kept  until  it  is  wanted  for  the  payment  of 
debts  or  legacies. 

Where  there  are  two  or  more  executors  or  administrators,  cither 
one  of  them  can  sell  and  transfer  the  property  which  they  hold  in 
that  character,  and  the  purchaser  who  buys  it  in  good  faith  and 
for  a  valuable  consideration,  can  hold  it  against  all  the  world.  (Z>o- 
gert  v.  Hertell,  4  Hill,  503.) 


CHAPTER  XL 

OP  THE  PAYMENT  OF  THE  FUNERAL  CHARGES,  AND  THE  ORDER 
OF  PAYING  THE  OTHER  LIABILITIES  OF  THE  ESTATE. 

Section  I. 

Of  funeral  expenses. 

The  revised  statutes  recognize,  by  implication,  the  common  law 
rule,  that  the  funeral  charges  are  the  first  lien  upon  the  estate  of 
a  deceased  person.  While  the  executor  is  forbidden,  before  the 
letters  testamentary  are  granted,  to  dispose  of  any  part  of  the  es- 
tate of  the  testator,  or  to  interfere  with  it  in  any  manner  fur- 
ther than  is  necessary  for  its  preservation,  an  express  ex- 
ception is  made  in  favor  of  funeral  charges.  (2  R.  S.  71,  §  16.) 
At  common  law,  it  is  the  duty  of  the  executor  or  administrator  to 
bury  the  deceased  in  a  manner  suitable  to  the  estate  which  he 
leaves  behind.  (2  Blk.  Com.  508.)  An  extravagant  expenditure 
of  money,  on  such  an  occasion,  would  be  a  devastavit.  The  diffi- 
culty is  to  fix  upon  a  rule  which  will  be  just  towards  parties  in 
distribution  and  creditors,  as  well  as  to  the  memory  of  the  de- 
ceased.    These  expenses  are  usually  incurred  when  the  exact  cir- 


270  FUNERAL  EXPENSES. 

cumstances  of  the  deceased  are  not  known,  and  by  the  relatives  or 
friends  of  the  deceased,  before  any  legal  authority  has  been  given 
to  administer  on  the  estate.  The  account,  when  incurred  in  good 
faith,  should  be  examined  with  liberality. 

A  distinction  is  very  properly  made  between  solvent  and  insol- 
vent estates  ;  and  between  cases  of  intestacy  and  where  the  testa- 
tor has  given  special  directions  in  his  will  as  to  the  place  and 
manner  of  his  burial,  and  the  estate  being  ample  to  bear  the 
charge.  In  the  latter  case,  the  question  will  not  arise  between 
the  executor  and  a  creditor,  but  between  the  former  and  the  legatees 
or  kindred. 

In  Shelley's  case,  before  Lord  Holt,  (1  Salk.  296,)  the  estate 
was  insolvent,  and  the  question  arose  between  the  executor  and  a 
creditor  on  a  plea  of  plene  administravit.  His  lordship  held  that 
in  strictness,  no  funeral  expenses  are  allowable  against  a  creditor 
except  for  the  coffin,  ringing  the  bell,  parson,  clerk  and  bearers' 
fees,  but  not  for  pall  and  ornaments.  Dr.  Burn  observes,  that  the 
expenses  of  digging  the  grave  and  of  the  shroud  should  have 
been  added  in  Shelley's  case.  A  charge  for  feasts  and  entertain- 
ments is  in  all  cases  inadmissible.  ( Toller,  48.)  They  are  incon- 
gruous to  so  mournful  an  occasion. 

Lord  Hardwicke,  in  Stagg  v.  Punter,  allowed  sixty  pounds 
for  the  funeral  expenses.  (3  Atk.  119.)  The  testator  had  direct- 
ed his  body  to  be  buried  at  a  church  thirty  miles  distant.  He 
had  left  large  sums  in  legacies,  thus  affording  a  reasonable  ground 
for  an  executor  to  believe  the  estate  solvent ;  and  it  was  not  clear 
that  there  was  any  deficiency.  His  lordship  observed,  that  at  law, 
where  a  person  dies  insolvent,  the  rule  is  that  no  more  shall  be  al- 
lowed for  funeral  expenses  than  is  necessary,  at  first  40s.  then 
£5,  and  at  last  £10,  but  he  thought  the  rule  a  hard  one,  even  at 
law,  as  the  executor  was  frequently  obliged  to  bury  the  testator 
before  he  could  possibly  know  whether  the  assets  were  sufficient 
to  pay  his  debts  ;  and  he  said  that  the  court  of  chancery  was  not 
bound  down  to  so  strict  rules. 

In  the  case  of  Hancock  v.  Podmore,  (1  Barn.  <$r  Adol.  260,) 
decided  in  1830,  issue  was  taken  by  a  creditor  on  a  plea  of  ple?ie 
administravit,  and  it  was  proved  that  the  assets  amounted  to 
£129,  and  that  the  executor  had  paid  £55  for  probate  duty  and 


FUNERAL  EXPENSES.  271 

£79  for  funeral  expenses.  The  court  held  that  it  was  too  much, 
and  intimated  that  at  the  present  time  an  allowance  of  £20  for 
the  funeral  of  a  person  of  condition  might  be  allowed,  as  against  a 
creditor.  In  that  case  the  deceased  had  been  a  captain  in  the 
army. 

It  has  been  made  a  question  whether  the  erection  of  a  tomb- 
stone can  be  allowed  as  a  funeral  expense,  as  against  legatees  or 
parties  in  distribution.  In  Masters  v.  Masters,  (1  P.  Wins.  423,) 
the  testatrix  had  given  two  hundred  pounds  by  her  will  for  a  mon- 
ument for  her  mother,  from  whom  she  received  most  of  her  estate. 
It  was  claimed,  as  a  debt  of  piety,  that  it  should  be  paid  without 
abatement,  in  preference  to  other  legacies,  and  was  allowed  by 
Sir  Joseph  Jekyl,  notwithstanding  a  deficiency  of  assets  to  pay 
all  the  general  legacies. 

The  doctrine  of  the  foregoing  cases  was  approved  by  the  chan- 
cellor, in  Wood  v.  Vandenburgh,  (6  Paige,  285.)  In  that  case 
the  estate  was  solvent,  but  not  able  to  pay  all  the  legacies  without 
an  abatement.  Nevertheless,  the  chancellor  held  that  a  legacy, 
for  piety,  for  the  erection  of  headstones  at  the  grave  of  the  testa- 
tor's parents,  or  other  near  relatives,  does  not  abate  ratably,  and 
should  be  paid  in  full.  He  held,  further,  in  the  same  case,  that 
the  direction  to  erect  a  monument  to  the  testator's  own  grave,  was 
not  a  legacy,  but  was  to  be  considered  as  a  part  of  the  funeral 
expenses  of  the  deceased,  where  it  did  not  interfere  with  the  rights 
of  creditors. 

The  question  has  sometimes  arisen  whether,  in  case  the  testator 
or  intestate  dies  at  a  distance  from  home,  the  expense  of  removing 
the  corpse  for  burial  to  the  place  of  his  residence,  is  a  proper  fu- 
neral charge  to  be  allowed.  If  the  deceased  gave  any  directions 
on  the  subject  in  his  will,  no  doubt  the  expense  of  obeying  them 
is  to  be  preferred  to  any  legacy  or  claim  of  the  parties  entitled  to 
distribution.  If  the  will  be  silent  on  the  subject,  the  case  will 
turn  upon  the  same  principle  which  will  govern  in  the  case  of  in- 
testacy. It  is  not  uncommon,  when  a  death  occurs  at  a  distance 
from  the  family  residence  of  the  deceased,  and  the  season  of  the 
year  interposes  no  obstacles,  for  the  corpse  to  be  conveyed  for  in- 
terment Lo  the  cemetery  which  it  would  have  occupied  had  he  died 


272  FUNERAL  EXPENSES— MOURNING. 

at  home.  This  is  usually  desired  by  the  immediate  kindred  of  the 
deceased,  and  is,  in  my  judgment,  a  proper  charge,  when  it  does 
not  interfere  with  the  claims  of  creditors. 

Whether  mourning  furnished  the  widow  and  family  of  a  testator 
is  to  be  allowed,  as  a  funeral  expense,  as  against  creditors  and 
legatees,  seems  to  have  been  decided  in  the  negative  in  England, 
in°Johnson  v.  Baker,  (2  C.  ^  P.  207,)  by  Best.  C.  J.  In  Bridge 
v.  Brown,  (1Y.  $•  C.  181,)  the  question  arose  between  a  part  of 
the  next  of  kin  and  the  executors,  whether  a  charge  of  £20  for  tomb 
stones,  and  £35  for  mourning  for  the  testator's  widow  and  daugh- 
ters, should  be  allowed  in  addition  to  £100  for  funeral  expenses, 
which  the  master  had  allowed.  On  exception  to  the  report,  the 
vice  chancellor  (Bruce)  refused  to  interfere  with  the  report,  and  it 
was  confirmed.  This  case  does  not  in  truth  settle  the  question,  be- 
cause the  £100  allowed  for  funeral  expenses  may  have  been  thought 
sufficient  to  cover  the  expenses  for  tomb  stones  and   mourning. 

In  a  case  where  a  large  part  of  the  estate  was  given  in  charity, 
and  the  testatrix  directed  that  "  any  thing  not  specified  she  com- 
mitted to  the  discretion  of  her  executors,"  and  they  expended 
£93  12s.  6d.  for  mourning  rings  to  be  distributed  among  the  re- 
lations and  friends  of  the  deceased,  Lord  Eldon  allowed  the 
charge,  as  being  within  the  discretion  of  the  executors.  (Paice  v. 
The  Archbishop  of  Canterbury,  14  Vesey,  3G4.)  Here  the  con- 
troversy was  not  raised  by  creditors,  but  the  question  arose  be- 
tween the  donees  of  the  charity  and  the  relatiyes  and  friends  to 
whom  the  mourning  rings  were  given  by  the  executors. 

The  principle  which  seems  to  be  deducible  from  the  cases  is,  that 
where  the  estate  is  large  and  the  claims  of  creditors  do  not  inter- 
fere, the  personal  representatives  are  justified  in  burying  the  de- 
ceased in  the  style  and  manner  usually  adopted  for  persons  of  the 
like  rank  and  condition  in  society.  If  the  custom  of  the  country 
is  to  erect  tomb  stones  at  the  grave  of  the  deceased,  such  charge 
will  be  justifiable  even  as  against  legatees  and  parties  in  distribu- 
tion. But  if  the  deceased  was  insolvent,  although  of  respectable 
standing,  a  funeral  corresponding  in  style  to  what  is  usual  by  the 
ordinary  custom  of  the  country  for  persons  moving  in  the  same 


PROBATE  EXPENSES.  273 

circle,  would  be  allowed.  But  as  tomb  stones  need  not  be  pur- 
chased, until  the  personal  representatives  have  ascertained  the 
state  of  the  deceased's  assets,  it  is  believed  they  are  not  a  proper 
charge  in  any  case,  as  against  creditors.  Questions  of  this  nature 
may  be  essentially  affected  by  provisions  in  the  will  of  the  deceased, 
and  by  the  general  custom  of  the  country. 

In  some  of  the  states  the  expenses  of  the  last  sickness  of  the 
deceased  ;  physicians'  bills,  and  servants'  wages  are  permitted  to  be 
first  paid ;  and  in  Ohio,  a  sum  is  allowed  for  the  support  of  the 
widow  and  children  for  one  year.  All  these  exceptions  are  founded 
on  local  statutes,  and  are  dictated  by  considerations  of  humanity 
and  benevolence.  They  have  not  yet  been  introduced  in  this  state, 
but  a  compensation  is  found  in  the  liberal  exemption  in  the  inven- 
tory, which  has  already  been  considered.  (2tKen£'s  Com.  419, 
420,  notes.) 

The  next  expenses  which  are  to  be  paid  by  the  executors  or 
administrators  are  those  incidental  to  the  probate  of  the  will,  and 
the  obtaining  of  letters  testamentary  or  letters  of  administration. 
These  expenses  are  the  regular  fees  allowed  to  the  subrogate  by 
the  fee  bill,  and  in  cases  of  contest,  such  as  shall  be  taxable 
according  to  law.  In  cases  where  it  shall  appear  to  the  surrogate 
by  the  oath  of  the  party  applying  for  letters  testamentary  or  of 
administration,  that  the  goods,  chattels  and  credits  of  the  deceased 
do  not  exceed  the  value  of  fifty  dollars,  no  fee  is  receivable  by  the 
surrogate.  {Laws  o/1844,  p.  447,  §  1.  3  R.  S.  921, 5th  ed.)  Instan- 
ces arc  very  rare  where  it  is  necessary  to  obtain  letters  on  so  small 
an  estate.  If  property  of  the  deceased  is  subsequently  discovered, 
above  the  value  of  fifty  dollars,  it  is  properly  chargeable  with  the 
surrogate's  fees. 

The  expenses  of  the  executor  or  administrator  arc  next  to  be 
discharged. 

Lastly,  the  debts  of  the  deceased,  which  arc  undisputed,  arc  to 
be  paid.  The  consideration  of  disputed  claims  is  postponed  until 
we  come  to  a  subsequent  chapter,  as  is  also  that  of  the  payment  of 
legacies  and  the  distributive  shares  of  the  surplus  to  those  who 
are  entitled  to  it.  At  present  we  are  to  treat  of  such  debts  as  arc 
not  controverted. 

35 


274  U.  S.  DEBTS  TO  BE  PREFERRED. 

In  the  payment  of  debts,  the  common  law  rule  of  preference  is, 
to  a  <rreat  extent,  abolished  by  the  revised  statutes.  The  order  of 
preference  prescribed  by  the  statute  is, 

1.  Debts  entitled  to  a  preference  under  the  laws  of  the  United 

States. 

2.  Taxes  assessed  upon  the  estate  of  the  deceased  previous  to 

his  death. 

3.  Judgments  docketed,  and  decrees  enrolled  against  the  de- 
ceased, according  to  the  priority  thereof,  respectively. 

4.  All  recognizances,  bonds,  sealed  instruments,  notes,  bills  and 
unliquidated  demands  and  accounts.     (2  R.  S.  87,  §  27.) 

We  shall  discuss  these  in  their  order. 

Section  II. 

Of  debts  entitled  to  a  preference  under  the  laws  of  the  United 

States. 

The  5th  section  of  the  act  of  Congress  of  the  3d  March,  1797, 
entitled  an  act  to  provide  more  effectually  for  the  settlement  of 
accounts  between  the  United  States  and  receivers  of  public  money, 
provides  that  where  any  revenue  officer,  or  other  officer,  or  other 
person,  hereafter  becoming  indebted  to  the  United  States,  by  bond 
or  otherwise,  shall  become  insolvent,  or  where  the  estate  of  any 
deceased  debtor,  in  the  hands  of  executors  or  administrators,  shall 
be  insufficient  to  pay  all  the  debts  due  from  the  deceased,  the  debt 
due  to  the  United  States  shall  be  first  satisfied ;  and  the  priority 
thereby  established,  is,  by  the  same  section,  declared  to  extend  as 
well  to  cases  in  which  a  debtor,  not  having  sufficient  property  to 
pay  all  his  debts,  shall  make  a  voluntary  assignment  thereof,  or  in 
which  the  estate  and  effects  of  an  absconding,  concealed  or  absent 
debtor,  shall  be  attached  by  process  of  law,  as  to  cases  in  which  an 
act  of  legal  bankruptcy  shall  be  committed.     (2  L.  of  U.  S.  594.) 
The  act  of  1799.  entitled  an  act  to  regulate  the  collection  of 
duties  on  imports  and  tonnage,  (3  L.  of  U.  >S.  136,  197,  §  65,)  and 
which  is  the  basis  of  our  revenue  laws,  provides  that  in  all  cases 
of  insolvency,  or  where  any  estate  in  the  hands  of  the  executors, 
administrators  or  assigns,  shall  be  insufficient  to  pay  all  the  debts 
due  from  the  deceased,  the  debt  or  debts  due  to  the  United  States, 


IT.  S.  DEBTS  TO  BE  PREFERRED.  275 

on  any  such  bond  or  bonds,  shall  be  first  satisfied ;  and  any  execu- 
tor or  administrator,  or  assignees,  or  other  persons,  who  shall 
pay  any  debt  due  by  the  person  or  estate  from  whom,  or  for 
which  they  are  acting,  previous  to  the  debt  or  debts  due  to  the 
United  States  from  such  persons  or  estate,  being  first  duly  satis- 
fied and  paid,  shall  become  answerable,  in  their  own  person  and 
estate,  for  the  debt  or  debts  so  duo  to  the  United  States,  or  so 
much  thereof  as  may  remain  due  and  unpaid,  and  actions  or  suits  at 
law  may  be  commenced  against  them  for  the  recovery  of  the  said 
debt  or  debts,  or  so  much  thereof  as  may  remain  due  and  unpaid, 
in  the  proper  court  having  cognizance  thereof ;  and  it  is  by  the 
same  section  also  provided,  that  if  the  principal,  in  any  bond  which 
shall  be  given  to  the  United  States  for  duties  on  goods,  wares  or 
merchandise  imported,  or  other  penalty,  either  by  himself,  his 
partner  or  agent,  or  other  person  for  him,  shall  be  insolvent,  or  if 
such  principal  being  deceased,  his  or  her  estate  or  effects,  which 
shall  come  to  the  hands  of  his  or  her  executors,  administrators  or 
asignees,  shall  be  insufficient  for  the  payment  of  his  or  her  debts, 
and  if.  in  either  of  the  said  cases,  any  surety  on  the  said  bond  or 
bonds,  or  the  executors,  administrators  or  asignees  of  such  surety, 
shall  pay  to  the  United  States  the  money  due  upon  such  bond  or 
bonds,  such  surety,  his  or  her  executors,  administrators  or  asignees, 
shall  have  and  enjoy  the  like  advantage,  priority  or  preference,  for 
the  recovery  and  receipt  of  the  said  moneys  out  of  the  estate  and 
effects  of  such  insolvent  or  deceased  principal,  as  are  reserved  and 
secured  to  the  United  States ;  and  shall  and  may  bring  and  main- 
tain a  suit,  or  suits,  upon  the  said  bond  or  bonds,  in  law  or  equity, 
in  his,  her  or  their  own  name,  or  names,  for  the  recovery  of  all 
moneys  paid  thereon. 

In  the  case  of  the  United  Stales  v.  Fisher  and  others, 
(2  Cranch,  358,)  the  question  was  very  fully  discussed  in  the 
supreme  court  of  the  United  States,  as  to  the  nature  and 
extent  of  the  preference  given  to  the  government  by  the  5th 
section  of  the  act  of  1797,  and  it  was  held  by  a  majority  of  the 
court,  that  it  extends  to  debtors  generally,  and  includes  the  case 
of  a  person  becoming  indebted  to  the  United  States  as  the  indorser 
of  a  bill  of  exchange.  This  priority  does  not,  however,  partake  of 
the  character  of  lien,  on  any  specific  effects,  (Id.  and  United  /States 


270  PRIORITY  OF  DEBTS. 

v.  Hooe,  3  Cranch,  73,  90,  per  Marshall,  Ch.  J.,)  and  therefore 
the  United  States  cannot  follow  the  property  into  the  hands  of  a 
bona  fide  assignee  of  a  debtor.  And  in  the  opinion  of  Mr.  Ch.  J. 
Marshall,  an  executor  or  administrator,  would  not  be  guilty  of  a 
devastavit  in  the  administration  of  the  effects  of  the  deceased, 
unless  he  had  notice  of  the  claim  of  the  government,  and  paid  the 
assets  to  other  creditors,  and  thus,  knowingly,  disregarded  the 
preference  due  to  the  United  States.  (2  Cranch,  391,  note,  and 
per  Piatt,  J.  in  Ailcin  v.  Dunlap,  16  John.  85.) 

The  priority  thus  given  to  the  United  States  is  not  waived  by 
their  proving  their  debts  before  the  commissioners  of  the  bank- 
rupt. {Harrison  v.  Sterry,  5  Cranch,  299.)  Nor  does  this  priority 
given  to  a  surety  who  pays  the  debt  or  his  principal,  extend  to  an 
action  brought  by  a  surety  against  his  principal,  for  money  paid. 
It  merely  transfers  to  the  surety  the  preference  due  to  the  govern- 
ment in  the  distribution  of  the  effects  of  the  insolvent  principal. 
The  latterfnay,  however,  when  sued  by  the  surety,  avail  himself 
of  his  discharge.     {Aikin  v.  Dunlap,  supra.) 

A  mere  state  of  insolvency,  or  inability  in  a  debtor  of  the  United 
States,  to  pay  all  his  debts  gives  no  preference  to  the  United 
States,  unless  it  is  accompanied  by  a  voluntary  assignment  of  his 
property  for  the  benefit  of  his  creditors ;  or  unless  his  estate  or 
effects  shall  be  attached  as  those  of  an  absent,  concealed,  or  ab- 
sconding debtor ;  or,  unless  he  has  committed  some  legal  act  of 
bankruptcy  or  insolvency.  {See  note  to  U.  States  v.  Hoioland, 
4  Wheat.  118,  et  seq.)  The  assignment  must  be  of  all  the  debtor's 
property.  An  omission,  however,  of  a  trivial  portion,  for  the  pur- 
pose of  evading  the  act,  would  probably  be  considered  as  a  fraud 
upon  the  law.  Though  a  judgment  gives  to  creditor  a  lien  on  the 
debtor's  land,  and  a  preference  over  all  subsequent  judgments, 
yet  this  preference  must  yield  to  the  priority  of  the  government. 
(Thelussonx.  Smith,  2  Wheat.  396.) 

The  priority  of  the  government  is  general  when  the  debtor  is 
dead.  During  his  life  it  is  limited  to  the  cases  above  stated. 
{Note  to  4  Wheat.  118.  Conard  v.  The  Atlantic  In.  Co. 
1  Peters,  386,  439.  Harris  v.  De  Wolf,  4  id.  147.  Hunter  v. 
The  United  States,  5  id.  172.  The  United  States  v.  The  State 
Bank  of  North  Carolina,  6  Peters,  29.) 


PRIORITY  OF  TAXES.  277 

The  right  of  priority  of  payment  of  debts  due  to  the  govern- 
ment, is  a  prerogative  of  the  crown  of  England,  well  known  to  the 
common  law.  It  is  founded  not  so  much  upon  any  personal  ad- 
vantage to  the  sovereign,  as  upon  motives  of  public  policy  to  se- 
cure an  adequate  revenue  to  sustain  the  public  burdens,  and  dis- 
charge the  public  debts.  The  claim  of  the  United  States,  how- 
ever, to  priority,  does  not  stand  upon  any  sovereign  prerogative,  but 
is  exclusively  founded  on  the  actual  provisions  of  our  own  statutes. 
The  same  policy  which  governed  in  the  cases  of  the  royal  prerog- 
ative may  be  clearly  traced  in  these  statutes  ;  and,  as  that  policy 
has  mainly  a  reference  to  the  public  good,  there  is  no  reason  for 
giving  to  them  a  strict  and  narrow  interpretation.    (Id.) 

Section  III. 

Of  taxes  assessed  upon  the  estate  of  the  deceased  previous  to  his 

death. 

We  have  seen  in  the  preceding  section  that  the  preference  given 
to  the  United  States,  in  the  payment  of  debts  out  of  the  estates 
of  deceased  persons,  arises  out  of  legislative  enactments,  founded 
on  principles  of  public  policy,  and  is  not  claimed  as  a  prerogative 
of  sovereignty.  In  England,  it  is  said  that  the  king,  by  his  pre- 
rogative, is  to  be  preferred  before  other  creditors,  inasmuch  as  the 
law  regards  the  royal  revenue  as  of  more  importance  than  any  pri- 
vate interest.  ( Toller;  259.)  This  preference,  however,  belongs 
to  the  king,  in  his  political  capacity,  as  the  representative  of  the 
whole  empire.  For  a  debt  due  to  him  as  an  individual,  he  stands 
on  a  footing  with  the  meanest  of  his  subjects. 

The  preference  given  to  the  king  of  England  in  the  payment  of 
debts  of  record,  or  by  specialty,  results  from  the  operation  of  the 
statute,  33  II.  8,  ch.  39,  by  which  it  is  enacted  that  all  obligations 
and  specialties,  taken  to  the  use  of  the  king,  shall  be  of  the  same 
nature  as  a  statute  staple.  This  statute  has  never  been  enacted 
in  this  state,  and  it  would,  therefore,  seem  that  a  debt  by  judg- 
ment or  specialty  to  the  people,  had  no  preference  over  one  of  the 
same  character  due  to  an  individual. 

The  general  opinion  has  always  been,  that  the  people  of  this 
state   succeeded,   at  the   revolution,    to   all    the  prerogatives   of 


278  PPJOIiiTY  OF  TAXES. 

the  crown,  existing  at  common  law,  which  were  applicable  to  our  cir- 
cumstances and  condition.  It  is  upon  this  principle,  probably, 
that  Mr.  Bridgen  and  Chancellor  Kent  both  state  that  debts  due 
to  the  people  are  to  be  paid  before  debts  of  the  same  rank  due  to 
individuals.  (BridgerCs  Surrogate,  63.  2  Kent,  416.)  What- 
ever may  have  been  the  law  before,  it  has  been  so  changed  by  the 
revised  statutes,  in  1830,  as  to  give  a  preference  only  to  taxes  as- 
sessed upon  the  estate  of  the  deceased  previous  to  his  death. 

It  will  not  be  without  instruction  to  trace  the  various  changes  in 
our  legislation  on  this  subject.  By  the  act  of  1788,  (2  Greenl. 
176,  §  3,)  the  person  in  possession  of  real  estate,  at  the  time  any 
tax  was  to  be  collected,  was  made  liable  to  pay  it ;  and  authority 
was  given  to  the  collector  to  sell  the  timber  and  grass  growing 
on  the  land  to  pay  the  tax.  The  18th  section  of  the  act  for  the 
assessment  and  collection  of  taxes,  passed  April  8, 1801,  (1  K.  t$*  R. 
555.)  made  a  tax  a  lien  on  the  estate,  to  be  considered  as  a  mort- 
gage. The  revised  act  of  1813,  [L.  of  1813,  p.  513,  §  10,)  de- 
clared that  all  taxes  upon  any  real  estate  should  be  a  lien  thereon, 
and  be  preferred  in  payment  to  all  other  charges  ;  and  all  taxes 
upon  any  personal  estate,  in  case  of  the  death  or  bankruptcy  of 
the  person  taxed,  were  also  ordered  to  be  preferred  in  payment  to 
all  other  demands.  From  this  provision,  the  preference  contained 
in  the  revised  statutes  of  1830  was  taken.  It  is  made  general. 
Taxes  assessed  upon  the  estate  of  the  deceased,  previous  to  his 
death,  is  the  language  of  the  section,  and  it  applies  to  all  taxes  go- 
ing to  the  people,  whether  assessed  on  real  or  personal  estate. 

But  this  statute  priority  is  not  extended  to  assessments  made  by 
a  municipal  corporation,  though  such  assessment  may  be  a  lien 
on  the  real  estate  of  the  party.  These  municipal  assessments  are 
payable  out  of  the  personal  estate,  though  not  entitled  to  a  prefer- 
ence over  other  debts.     (Seabury  v.  Bowen,  3  Bradf.  207.) 


PRIORITY  OF  JUDGMENTS.  279 


Section  IV. 


Of  the  preference  in  the  payment  of  judgments  docketed,  and 
decrees  enrolled  against  the  deceased,  according  to  their 
priority. 

The  rule  of  priority,  at  common  law.  embraced  the  judgments  of 
all  the  courts  of  record  of  the  kingdom ;  that  is  to  say, 
not  only  the  judgments  of  the  courts  of  Westminster  Hall ;  but 
also  of  the  courts  of  cities,  or  towns  corporate,  having  power  by 
charter  to  hold  plea  of  debt  above  forty  shillings,  as  in  London, 
Oxford,  and  other  places.  So,  it  seems  judgment  in  a  court  of  pie 
poudre,  which  is  a  court  incident  to  every  fair  and  market,  and  is  the 
lowest  court  of  justice  known  to  the  law  of  England,  claims  the  same 
preference.     (2  Wms.  Ex'rs,  856,  7.    WentwortKs  Ex'rs.  271.) 

With  us  the  criterion  as  to  priority  is  not  so  much  the  charac- 
ter of  the  court  as  the  nature  of  the  judgment.  It  must  be  a 
judgment  docketed  or  a  decree  enrolled  against  the  deceased.  The 
enrollment  of  decrees  had  reference  to  the  practice  of  the  court  of 
chancery,  which  has  since  been  abolished,  and  a  similar  one  sub- 
stituted by  the  code.  (§  281.)  The  mode  of  expression  adopted 
in  the  statute  clearly  shows  that  it  lias  reference  only  to  a  final 
judgment  of  some  court  in  this  state,  which  is  docketed  according 
to  our  own  laws.  {Brown  v.  The  Public  Administrator,  2  Bradf. 
Rep.  108.)  A  judgment  recovered  in  another  state  has  no  greater 
force  in  respect  to  the  distribution  of  the  assets  of  a  deceased  per- 
son, than  a  foreign  judgment.  Neither  at  common  law,  nor  under 
the  statutes  of  this  state,  have  judgments  recovered  in  another 
state  any  title  to  priority  of  payment  over  simple  contracts.  Cred- 
itors claiming  under  such  judgments,  must,  it  is  said,  come  in 
with  the  creditors  of  the  deceased,  described  in  the  4th  class  men- 
tioned in  the  section,  and  which  will  be  the  subject  of  the  next 
section.     {Id.) 

A  judgment  of  a  foreign  country  is  considered  merely  as  a  sim- 
ple contract.  {Hubbell  v.  Coudy,  5  John.  132.  Walker  v.  Witter, 
1  Douglass,  1.  Taylor  v.  Brydcn,  8  John.  173.  Pawling  v.  Bird, 
13  id.  192.)     The  courts  in  this  state  formerly  applied  this  rule  to 


280  PRIORITY  OF  JUDGMENTS. 

judgments  of  the  several  states  of  this  union.  But  since  the  case 
of  Mills  v.  Duryee  (7  Cranch,  481, )  for  the  purpose  of  pleading 
and  evidence,  the  judgment  of  a  neighboring  state,  rendered  by  a 
court  of  record  therein,  is  of  the  same  conclusive  character  as  a 
judgment  of  the  like  courts  of  our  own  state.  This  results  from 
the  constitution  of  the  United  States  requiring  that  full  faith  and 
credit  shall  be  given  in  each  state  to  the  public  acts,  records  and 
judicial  proceedings  of  every  other  state  ;  and  the  act  of  congress 
of  26th  May,  1790,  ch.  11,  passed  in  pursuance  of  the  requirement 
of  the  constitution,  which  provides  for  the  mode  of  authenticating 
the  records  and  judicial  proceedings  of  the  state  courts.  It  enacts 
"  That  the  records  and  judicial  proceedings  authenticated  as  afore- 
said, shall  have  such  faith  and  credit  given  to  them  in  every  court 
within  the  United  States,  as  they  have  by  law  or  usage  in  the 
courts  of  the  state  from  whence  the  said  records  are  or  shall  be 
taken."  This  provision  evidently  has  reference  only  to  the  faith 
and  credit  which  are  to  be  given  to  the  judgment  as  matter  of 
evidence,  and  the  manner  in  which  it  is  to  be  treated  in  pleading. 
It  does  not  affect  the  rule  of  priority  in  payment. 

Judgments  of  the  United  States  courts  in  this  state  are  entitled 
to  be  docketed,  and,  like  judgments  of  our  own  courts,  are  a  lien 
upon  land.  It  is  believed  that  such  judgments  are  entitled  to 
priority  according  to  the  date  of  their  docketing.  (Bemes  v. 
Weisser,  2  Bradf.  212,  214.  Manhattan  Co.  v.  Evertson, 
6  Paige,  457.) 

Debts  entitled  to  preference  under  the  third  class,  are  not  to  be 
paid,  like  those  under  the  fourth  class,  pro  rata,  in  case  of  a  de- 
ficiency of  assets,  but  are  entitled  to  be  satisfied  in  the  order  of 
priority.  Hence  if  there  be  several  judgments,  docketed  on  different 
days,  and  the  assets  are  only  sufficient  to  pay  part,  they  must  be 
applied  in  full  satisfaction  of  the  elder  in  point  of  time,  and  if  any 
thing  remains,  it  is  to  be  applied  to  the  next  in  point  of  time,  and 
so  on  till  the  whole  fund  is  exhausted.  Nor  does  it  alter  the  case, 
that  one  or  more  of  the  judgments  have  been  docketed  more  than 
ten  years,  so  that  its  lien  upon  the  real  estate  must  yield  to  sub- 
sequent liens.  The  statute  does  not  make  that  qualification  in 
establishing  the  priority  in  the  administration  of  the  payments. 


PRIORITY  OF  JUDGMENTS.  281 

It  looks  to  the  date  of  tlic  docket,  and  not  to  its  effect  as  a  lien. 
(Ainslie  v.  Radcliff,  7  Paige,  439.) 

Whether  a  judgment  docketed  after  the  death  of  the  defendant, 
is  entitled  to  a  preference,  has  sometimes  been  made  a  question. 
In  England  it  has  been  held  that  a  judgment  which  is  entered  up 
(by  virtue  of  the  statute  17  Car.  2,  ch.  8,  §  1)  against  the  testa- 
tor or  intestate  after  his  death,  when  that  happens  between  ver- 
dict and  judgment,  shall  be  considered  as  if  entered  up  in  his  life- 
time, and  entitled  to  priority  of  payment  by  his  executors  or  ad- 
ministrators accordingly.  (2  Ld.  Raymond,  1280.)  But  when 
his  death  happens  between  interlocutory  and  final  judgment,  and 
the  latter  is  entered  up  by  virtue  of  the  statute  8  &  9  W.  3,  it 
is  otherwise,  for  such  judgment  is  not  to  be  entered  against  the 
testator  or  intestate,  but  against  his  executors  or  administrators. 
(1  Salk.  42.  2  Saund.  72.)  And  it  is  the  same  when  the  death 
happens  after  the  writ  of  inquiry  is  executed  and  before  final 
judgment.     (2  Will.  Ex.  857.) 

The  statute  of  17  Car.  2,  above  cited,  was  re-enacted  in  this  state 
many  years  ago.  {See  act  of  1801,  1  R.  L.  of  1813,  p.  144,  §  5.) 
It  was  continued  in  the  revision  of  1830,  as  was  also  the  substance 
of  the  8  &  9  W.  3.  (2  R.  S.  387,  §§  3,  4.)  There  are,  however, 
some  qualifications  annexed  to  our  present  act.  Thus,  in  all  cases 
in  which  a  record  of  judgment  shall  be  filed  and  docketed,  within 
one  year  after  the  death  of  the  party  against  whom  such  judgment 
was  obtained,  a  suggestion  of  such  death,  if  it  happened  before 
judgment  rendered,  is  required  to  be  entered  on  the  record,  and  if 
after  judgment  rendered,  the  fact  must  be  certified  on  the  back  of 
the  record  by  the  attorney  filing  the  same.  Such  judgment,  it  is 
enacted,  shall  not  bind  the  real  estate  which  such  party  shall  have 
had,  at  the  time  of  his  death,  but  shall  be  considered  as  a  debt  to 
be  paid  in  the  usual  course  of  administration.  (2  R.  S.  359,  §  7. 
Nichols  v.  Chapman,  9  Wend.  455,  et  seq.) 

It  is  obvious,  1st.  that  such  judgment  cannot  bind  the  real  estate 
of  the  deceased,  because  no  judgment  binds  the  real  estate 
until  it  is  docketed  ;  and  2d.  before  the  judgment  is  docketed, 
the  real  estate  at  the  death  of  the  party  vests  in  his  heirs  or 
devisees. 
The  object  of  a  docket  is  not  exclusively  to  bind  land  and  to 

36 


2g2  PRIORITY  OF  JUDGMENTS. 

notify  purchasers.  The  statute  4  and  5  W.  and  M.  ch.  20,  (re- 
enacted,  1  R.  L.  of  1813,  501,  §  3)  provided  that  no  judgment  not 
docketed,  should  have  any  preference  against  heirs,  executors  or 
administrators,  in  their  administration  of  their  ancestors,  testators, 
or  intestates'  effects.  In  Hackley  v.  Hayton,  (6  D.  <Sf  E.  384,) 
the  construction  of  this  statute  was  for  the  first  time  given  ;  and 
it  was  held  that  the  object  of  the  docket  was  to  notify  the  executor 
or  administrator  of  the  claim;  that  if  the  docket  was  omitted,  the 
judgment  must  be  put  on  a  level  with  a  simple  contract.  The 
N.  Y.  revised  statutes  declare  that  no  judgment  shall  be  deemed 
valid  so  as  to  authorize  any  proceeding  thereon  until  the  record 
thereof  shall  have  been  signed  and  filed  ;  nor  shall  it  affect  lands, 
tenements,  real  estate  or  chattels  real,  or  have  any  preference  as 
against  judgment  creditors,  purchasers  or  mortgagees,  until  the 
record  thereof  is  filed  and  docketed  as  the  law  requires.  (2  R.  S. 
360,  §§  11,  12.      Van  Ornam  v.  Philips,  9  Barbour,  504-5.) 

In  the  case  of  Nichols  v.  Chapman,  supra,  a  judgment  had 
been  entered  up  on  a  bond  and  warrant  of  attorney  after  the  death 
of  the  defendant,  who  died  in  vacation,  as  of  the  preceding  term, 
when  he  was  in  full  life,  and  an  execution,  tested  in  his  lifetime, 
had  been  issued  to  the  sheriff  and  levied,  after  the  defendant's 
death,  on  his  personal  property.  The  administrators  moved  the 
court  to  set  aside  this  execution  for  irregularity.  The  Chief 
Justice  (Savage)  in  delivering  the  judgment  of  the  court,  observed, 
that  if  a  person  who  has  executed  a  bond  and  warrant  of  attorney 
to  confess  judgment,  dies  during  a  vacation,  judgment  may  be  en- 
tered against  him,  during  the  same  vacation,  as  of  the  preceding 
term,  and  it  will  be  valid  by  the  common  law.  Upon  the  same 
principle  the  execution,  at  common  law,  might  have  issued,  if 
tested  before  the  death  of  the  defendant  and  levied  before  the  next 
term.  But  he  considered,  that  under  the  revised  statutes,  although 
judgment  might  be  regularly  entered  up  and  docketed,  in  the 
manner  above  stated,  yet  no  execution  could  regularly  issue  ;  that 
the  judgment  became  a  debt  to  be  paid  in  the  regular  course  of 
administration.  That  the  usual  course  of  administration  in  the 
payment  of  judgments  is  to  pay  the  oldest  first,  the  docket  being 
the  evidence  of  the  age.  In  that  case,  therefore,  the  execution 
was  set  aside  as  irregular.     The  court  held  that  the  administrators 


PRIORITY  OF  JUDGMENTS.  283 

of  the  deceased  and  not  the  sheriff,  were  the  proper  persons  to  ad- 
minister the  assets. 

At  common  law,  between  one  judgment  and  another  obtained 
against  the  deceased,  as  they  stood  amongst  themselves,  precedency 
or  priority  of  time  was  not  material.  ( Toller,  265.  Ainslie  v. 
Raddiff,  7  Paige,  439.  Trust  v.  Harned,  4  Brad.  213.)  The 
executor  or  administrator  might  pay  which  he  pleased  first.  But 
by  the  New  York  revised  statutes,  judgments  docketed  and  de- 
crees enrolled  must  be  paid  according  to  their  priority.  (2  R.  S. 
87,  §  27.)  This  is  merely  applying  to  the  administration  of  per- 
sonal property,  the  same  rule  which  before  existed  as  to  real  prop- 
erty, in  the  satisfaction  of  judgments  and  enrolled  decrees  ;  that 
is  to  say,  of  paying  them  not  pro  rata,  nor  ad  libitum,  but  accord- 
ing to  their  rank,  the  oldest  first,  and  thus  in  succession  according 
to  the  date  of  the  docket,  till  they  are  all  paid.  It  is  in  the  power 
of  the  executor  or  administrator  to  ascertain  from  the  proper 
officers,  the  number  and  amount  of  judgments  or  decrees  against 
the  deceased.  He  ought  to  obtain  this  information,  and  satisfy 
the  docketed  judgments  and  enrolled  decrees  according  to  their 
legal  priorities. 

The  revised  statutes,  as  originally  adopted,  in  their  provisions 
as  to  docketing  judgments  and  enrolling  decrees,  had  reference  to 
judgments  of  courts  of  general  jurisdiction,  viz  :  The  court  of 
chancery,  supreme  court,  courts  of  common  pleas  of  the  different 
counties,  and  superior  court  of  New  York.  They  were  framed 
with  reference  to  the  courts  established  under  the  constitution  of 
1822.  Since  the  adoption  of  the  constitution  of  1846,  the  courts 
have  been  remodeled,  and  others  created.  But  the  principle  rela- 
tive to  the  priority,  arising  from  the  time  of  docketing  judgments, 
has  been  retained  ;  and  has  been  extended  to  the  judgments  of 
justices  of  the  peace,  {Code,  §  63,)  decrees  of  surrogates'  courts 
for  the  payment  of  moneys,  by  an  executor  or  administrator,  or 
guardian.  (L.  o/1837,  p.  535,  §  63.)  And  probably  to  other  lo- 
cal courts.  Those  judgments  and  decrees,  when  docketed,  are  to 
be  paid  according  to  their  priority. 

A  judgment  obtained  against  an  executor  or  administrator  is 
entitled  to  no  such  preference.  Nor  does  the  commencement  of  a 
suit  against  the  personal  representatives,  for  the  recovery  of  any 


2g4  EQUALITY  OF  PAYMENT. 

debt,  confer  any  advantage  as  it  formerly  did.  (2  R.  S.  87,  §  28. 
Parker  v.  Gainer,  17  Wend.  560.  Butler  v.  Hempstead's 
AdmWs,  18  iU  666.) 

Section    V. 

Of  the  payment  of  recognizances,  bonds,  sealed  instruments, 
notes,  bills,  and  unliquidated  demands  and  accounts. 

The  fourth  and  last  class  of  debts  to  be  paid  by  the  executor  or 
administrator  is  that  named  at  the  head  of  this  section.  This  em- 
braces every  other  species  of  debts  not  included  in  the  preceding 
sections  ;  and  every  other  demand  which  it  is  the  duty  of  an  exec- 
utor or  administrator  to  discharge.  There  is  one  strong  feature 
•which  marks  this  class  of  demands.  They  are  all  placed  upon  an 
equality  as  to  payment.  It  is  expressly  enacted  that  no  prefer- 
ence shall  be  given  in  the  payment  of  any  debts  of  the  same  class, 
except  in  the  case  of  judgments  docketed  and  enrolled  decrees. 

Nor  does  the  fact  of  the  debts  not  being  due,  make  any  differ- 
ence. Debts  not  due  may  be  paid  by  an  executor  or  administra- 
tor, according  to  the  class  to  which  it  may  belong,  after  deducting  a 
rebate  of  legal  interest  upon  the  sum  paid  for  the  time  unexpired. 
(2  R.  S.  87,  §  29.) 

The  only  exception  to  the  rule  of  equality  in  this  class,  is  in  the 
case  of  rents  due  or  accruing  upon  leases  held  by  the  testator  or 
intestate,  at  the  time  of  his  death.  In  regard  to  them,  the  statute 
enacts  that  preference  may  be  given  by  the  surrogate  to  such 
rents  whenever  it  shall  be  made  to  appear,  to  his  satisfaction,  that 
such  preference  will  benefit  the  estate  of  the  testator.  {Id.  §  37.) 
This  exception  was  not  proposed  by  the  revisers,  but  was  inserted 
by  the  legislature,  probably  for  the  reason  that  by  the  law,  then 
in  force  between  landlord  and  tenant,  the  goods  might  be  liable  to 
be  seized  and  sold  under  a  distress  warrant,  issued  by  the  land- 
lord. (2  R.  S.  500.)  Distress  for  rent  was  abolished  in  1846, 
{L.  o/1846,  ch.  274.  3  R.  S.  829,  5th  ed.)  and  thereby  the  prin- 
cipal reason  for  this  preference  was  taken  away.  Still  the  excep- 
tion remains,  and  there  may  be  cases  when  it  should  be  allowed. 
With  this  exception,  all  the  provisions  of  the  revised  statutes  im- 
ply that  the  debts  embraced  in  this  section  shall  be  paid  ratably. 


EQUALITY  OF  PAYMENT.  285 

Thus,  it  is  provided,  that  in  any  suit  against  an  executor  or  admin- 
istrator, the  defendant  may  show,  under  a  notice  for  that  purpose, 
given  with  his  plea,  that  there  are  debts  of  a  prior  class  unsatis- 
fied, or  that  there  are  unpaid  debts  of  the  same  class  with  that 
on  which  the  suit  is  brought,  and  judgment  shall  be  rendered  only 
for  such  part  of  the  assets  in  his  hands  as  shall  remain  after  satis- 
fying the  debts  of  the  prior  class,  and  as  shall  be  a  just  proportion 
to  the  other  debts  of  the  same  class  with  that  on  which  the  suit 
is  brought.     But  the  plaintiff  may,  as  in  other  cases,  take  judg- 
ment for  the  whole  or  part  of  his  debts  to  be  levied  of  future 
assets.     (2  R.  S.  88,  §  31.)     The  change  of  pleading  introduced 
by  the  code  has  made  some  modification  in  the  practice  in  this 
respect.     The  supreme  court,  in  Allen  v.  Bishop,  (25  Wend.  415,) 
took  notice  of  the  impossibility  of  reconciling  some  sections  of  the 
revised  statutes  Avith  the  general  system  prescribed  in  respect  to 
the  settlement  of  the  estates  of  deceased  persons.     The  chief  jus- 
tice  (Nelson)  observed  that  a  pro  rata  distribution  among  the 
creditors  of  a  class,  in  case  of  a  deficit  in  the  assets,  is  a  fundamen- 
tal principle,  for  the  enforcement  of  which  abundant  provision  is 
made.     The  whole  fund  is  brought  under  the  control  of  the  surro- 
gate, and  not  a  dollar  can  be  touched  without  his  assent.     Execu- 
tors and  administrators  are  but  trustees  to  settle  the  estate  under 
his  direction  and  control,  agreeably  to  the  principles  of  the  statute. 
Nothing  is  gained  by  obtaining  a  judgment  against  them  beyond 
the  liquidation  of  the  debt.     The  creditor  gets  no  costs,  except  at 
the  discretion  of  the  court,  and  only  his  pro  rata  share  on  the 
judgment.     The  result  is  the  same  whether  the  suit  is  defended  or 
not     (18  Wend.  666.     12  id.  542.     17  id.  559.)     And  hence  the 
court  held  that  a  plea  of  plene  adtninistravit,  and  j>le?ie  adminis- 
travit  prefer,  were  no  longer  appropriate,  and  the  latter  not  a  bar, 
although  the  31st  section  of  the  act  imported  the  contrary. 

In  case  a  judgment  is  obtained  against  an  executor  or  adminis- 
trator, no  execution  can  be  issued  until  an  account  of  his  adminis- 
tration shall  have  been  rendered  and  settled,  or  on  an  order  of  the 
surrogate  who  appointed  him.  And  if  an  account  has  been  ren- 
dered by  such  executor  or  administrator,  execution  shall  only  issue 
for  the  sum  that  shall  appear  on  the  settlement  of  such  account  to 
have  been  a  just  proportion  of  the  assets  applicable  to  the  judg- 


286  EQUALITY  OF  PAYMENT. 

ment.  (Id.  §  32.  Winne  v.  Van  Schaick,  9  Wend.  448.  The 
People  v.  Judges  of  the  Albany  Mayor's  Court,  id.  489.) 

Nor  is  there  any  preference  given  to  a  debt  due  to  an  execu- 
tor or  administrator  from  the  deceased.  Such  debt  is  placed  upon 
the  same  footing  of  equality  as  other  debts,  and  must  be  first  al- 
lowed by  the  surrogate  before  payment.  (Id.  83.  Treat  v.  For- 
tune, 2  Bradf.  116.  Rogers  v.  Hosack's  Ex'rs,  18  Wend.  319. 
6  Paige,  426,  8.  C)  This  allowance  may  be  made  on  the  return 
of  a  citation  for  that  purpose,  directed  to  the  proper  persons,  or  on 
the  final  accounting  of  the  executor  or  administrator,  which  will 
be  hereafter  considered.  (L.  o/1837,  ch.  460,  §  37.  3  R.  S.  175, 
5th  ed.) 

At  common  law  the  rule  of  payment  was  otherwise.  Recog- 
nizances ranked  next  after  judgments,  and  then  specialties,  and 
lastly  simple  contract  debts.  But  the  executor  or  administrator 
might  pay  which  of  the  same  class  he  pleased,  without  reference 
to  priority ;  or  he  might  distribute  equally  among  those  of  the 
same  class.  Hence  if  there  were  several  creditors  by  specialty, 
he  might  pay  one  alone  his  whole  debt,  and  leave  the  others  unpaid, 
in  case  of  a  deficiency  of  assets.  (Toller,  271  to  288.)  In  like 
manner  among  simple  contracts,  the  executor  or  administrator  might 
pay  one,  and  that  the  youngest  creditor,  to  the  exclusion  of  the 
others.  It  was  sufficient  evidence  to  support  a  plea  of  plene  ad- 
ministravit,  that  the  assets  were  paid  to  a  creditor,  and  it  was  no 
evidence  of  a  devastavit,  that  other  creditors  of  the  same  class 
were  thus  left  unpaid.  The  commencement  of  a  suit,  at  law  or  in 
equity,  gave  a  priority  over  other  creditors  in  equal  degree,  but 
the  executor  or  administrator  might  go  and  confess  a  judgment  to 
another  creditor,  in  equal  degree,  and  thereby  defeat  the  creditor 
who  first  sued,  by  pleading  the  judgment  and  nil  ultra,  fyc. 
(2  Kent's  Com.  416,  417.)  The  injustice  of  the  common  law 
rule  of  payment  was  early  felt,  and  in  chancery  the  distribution  of 
what  are  termed  equitable  assets  was  more  liberal  and  equitable. 
No  distinction  was  made  in  that  court,  as  to  the  quality  of  the  debts, 
except  debts  which  had  acquired  a  priority  by  a  legal  lien,  and 
the  creditors  were  paid  ratably,  if  the  assets  were  not  sufficient  to 
pay  all  of  them.  The  legislature  seems  to  have  had  this  in  view 
when  the  revised  statutes  were  enacted. 


JOINT  DEBTORS— MORTGAGE.  287 

A  recognizance  is  an  obligation  of  record  ;  it  may  be  entered 
into  before  a  court  of  record,  or  a  magistrate  duly  authorized,  con- 
ditioned for  the  performance  of  a  particular  act ;  as  to  appear 
at  court,  to  keep  the  peace,  to  pay  a  debt,  or  the  like.  The  party 
who  enters  into  the  recognizance  is  called'  the  cognizor  "  is  qui 
cognoscit ;"  and  he  to  whom  the  debt  or  obligation  is  acknowledged, 
the  cognizce,  "  is  cui  cog-noscitw"  The  instrument  being  either 
certified  to,  or  taken  by  the  officer  of  some  court,  is  authenticated 
only  by  the  record  of  such  court,  and  not  by  the  party's  seal.  (2  Blk. 
Com..  -341.)  In  this  state,  such  recognizances  as  are  required  or 
authorized  to  be  taken  in  any  criminal  proceeding,  in  open  court, 
by  any  court  of  record,  are  entered  in  the  minutes  of  the  court, 
and  the  substance  is  read  to  the  person  recognized ;  all  other  re- 
cognizances in  any  criminal  matter  or  proceeding  under  the  laws 
respecting  the  internal  police  of  the  state,  are  required  to  be  in 
writing  and  subscribed  by  the  parties  to  be  bound  thereby. 
(2R.  S.  746,  §  24.  The  People  v.  Rundle,  6  Hill  506.  Same 
'v.  Graham,  1  Parkers  Cr.  Rep.  141.) 

If  the  testator  or  intestate  is  bound  in  a  joint  and  several  obli- 
gation, his  executor  or  administrator  may  pay  it  out  of  the  estate 
of  the  deceased  ;  but  if  the  testator  or  intestate  is  bound  in  a 
joint  obligation  merely,  the  survivor  must  be  charged  out  of  his 
own  estate,  and  the  executors  or  administrators  of  the  dceased  co- 
obligor  are  not  liable  at  law,  on  the  instrument,  nor  can  they  set 
up  any  payment  of  it.  (Bac.  Abr.  title  Obligation,  D.  4.  Tow- 
ers v.  Moore,  2  Vern.  99.)  This  is  an  incident  of  the  other  rule 
that  the  right  to  a  joint  debt  on  obligation,  at  law,  goes  to  the 
survivor.  In  equity  it  is  otherwise  ;  for  though  the  obligation  be 
joint  and  one  of  the  obligors  dies,  yet  if  the  obligee  cannot  recov- 
er the  amount  due  against  the  survivor,  the  estate  of  the  deceased 
is  liable. 

A  debt  secured  by  mortgage  was  formerly  a  charge  upon  the 
personal  assets,  whether  there  was  a  bond  accompanying  the  mort- 
gage or  not ;  nor  did  it  make  a  difference  whether  there  was  an 
express  covenant  contained  in  the  mortgage  to  pay  the  money,  or 
not.  (1  P.  Wms.  291,  294.  .2  id.  455.  3  id.  358.  Mollan  v. 
Griffith,  3  Paige,  404.)     If,  however,  there  was  no  bond  or  cov- 


288  BOND  AND  MORTGAGE. 

cnant,  the  debt  was  ranked  as  a  simple  contract  and  was  postponed 
in  favor  of  specialties.  If  there  was  an  express  covenant  to  pay, 
or  a  bond  accompanying  the  mortgage,  it  took  rank  as  a  specialty 
debt  and  the  executor  or  administrator  was  bound  to  discharge  it, 
and  thus  leave  the  inheritance  incumbered  to  the  heir  or  devisee. 
{Id.)  But  this  doctrine  is  now  modified  by  the  revised  statutes. 
Thus,  it  is  enacted,  (1  R.  S.  738,  §  139,)  that  a  mortgage  shall 
not  be  construed  as  implying  a  covenant  for  the  payment  of 
the  sum  intended  to  be  secured.  And  as  a  consequence  from  this 
position,  it  is  also  provided  that,  where  there  is  no  express  cove- 
nant for  the  payment  of  the  money,  contained  in  the  mortgage, 
and  no  bond  or  other  separate  instrument  to  secure-  such  pay- 
ment, the  remedies  of  the  mortgagee  shall  be  confined  to  the 
lands  mentioned  in  the  mortgage.  {Hone  v.  Fisher,  2  Barb. 
Ch.  R.  559.)  The  operation  of  this  provision  is  to  release  the 
personal  estate  from  the  payment  of  a  mortgage,  when  the  de- 
ceased had  entered  into  no  obligation  to  pay  the  money  secured 
by  it.  Accordingly,  it  is  further  enacted,  that  whenever  any  real 
estate,  subject  to  a  mortgage  executed  by  any  ancestor  or  testator, 
shall  descend  to  an  heir,  or  pass  to  a  devisee,  such  heir  or  devisee 
shall  satisfy  and  discharge  such  mortgage  out  of  his  own  property 
without  resorting  to  the  executor  or  administrator  of  his  ancestor, 
unless  there  be  an  express  direction  in  the  will  of  such  testator, 
that  such  mortgage  be  otherwise  paid.  (1  R.  S.  749,  §  4.  Tay- 
lor v.  Wendel,  4  Bradf.  324.)  Hence  when  a  surrogate  decrees 
a  distribution  of  the  personal  estate  of  the  deceased  debtor  among 
his  creditors,  if  any  such  creditor  have  a  security  for  his  debt 
upon  another  fund  which  is  primarily  liable  for  the  payment  of 
the  debt,  the  surrogate  should  compel  such  creditor  to  exhaust  his 
remedy  against  such  fund,  and  only  to  come  in  as  against  the  per- 
sonal estate  for  the  deficiency.  And  when  distribution  of  such 
personal  estate  must  be  made  before  such  deficiency  can  be  ascer- 
tained, he  should  direct  a  portion  of  the  personal  estate  to  be  re- 
tained to  meet  the  contingent  claim  for  such  deficiency.  {Halsey 
v.  Reid,  9  Paige,  446.     Smith  v.  Laiorence,  11  id.  207.) 

The  general  clause  in  a  will  directing  the  payment  of  all  the 
testator's  debts  by  his  executors  is  not  sufficient  to  charge  the 
executors  with  the  payment  of  a  mortgage  on  real  estate  devised. 


DUTY  OF  EXECUTORS,  &o.  289 

To  interfere  with  the  provisions  of  the  statute  relieving  the  gen- 
eral estate  from  the  charge,  there  must  be  some  express  direc- 
tion in  the  will  to  that  effect.  The  usual  formula  in  a  will,  di- 
recting all  his  debts  to  be  paid,  is  not  sufficient  for  this  purpose. 
( Taylor  v.  Wendel,  4  Bradf.  324.)  Hence,  where  the  testator  by 
his  will  bequeathed  the  sum  of  $20,000  in  trust  for  his  niece,  and 
afterwards,  by  a  codicil,  devised  to  her  a  house  and  lot  in  lieu  of 
a  portion  of  the  legacy ;  the  premises  devised  being  subject  to  a 
bond  and  mortgage  at  the  time  of  his  death,  and  the  will  contain- 
ing only  the  usual  direction  to  pay  debts,  it  was  held  by  the  learn- 
ed surrogate  of  New  York  that  the  devisee  took  the  land  cum 
otici'e,  and  was  bound  to  pay  the  mortgage  and  the  interest  there- 
on. (Id.)  As  between  the  devisee  and  executor  in  such  a  case, 
the  mortgage  is  the  principal  security,  and  the  land  the  pri- 
mary fund  for  its  discharge. 

The  alterations  made  by  the  revised  statutes  in  the  duties  of 
executors  and  administrators  in  the  payment  of  debts  of  the  de- 
ceased, the  abolition  of  preferences  among  creditors,  except  where 
a  legal  lien  has  been  acquired  by  a  judgment  docketed  or  decree 
enrolled,  and  the  taking  away  of  the  advantage  which  was  formerly 
given  to  commencing  suits  against  executors  and  administrators 
and  obtaining  judgments,  have  much  simplified  their  labors,  dimin- 
ished their  responsibility,  and  rendered  an  examination  of  the  old 
cases  on  this  subject,  in  a  great  measure,  unnecessary.  It  is  the 
policy  of  the  law  to  make  it  for  the  interest  of  the  creditors  of  the 
estate  to  exhibit  their  claims  at  an  early  period,  and  to  receive 
their  debt,  or  such  portion  of  it  as  the  estate  is  able  to  pay,  with- 
out resorting  to  a  suit.  The  executor  or  administrator  should  ascer- 
tain as  soon  as  possible  the  extent  of  the  assets ;  he  should  adopt 
the  appropriate  means  to  learn  the  amount  of  the  just  demands 
against  the  estate,  and  should  pay  them  in  the  manner  the  law  re- 
quires. He  should  not  be  too  precipitate  in  making  payments  on 
the  one  hand,  lest  the  assets  would  not  be  sufficient  to  satisfy  all ; 
nor  should  he  be  too  dilatory  on  the  other,  lest  he  should  be  sub- 
jected to  costs. 

37 


290     *  OF  PAYMENT  OF  AN  INFERIOR  DEBT. 


Section  VI. 

Of  the  payment  of  an  inferior  debt  before  a  superior,  and  of 
miscellaneous  matters  in  relation  to  this  subject. 

An  executor  or  administrator  is  bound  to  take  notice,  at  his 
peril,  of  all  judgments  docketed  and  decrees  enrolled  ;  and  it  is  for 
this  purpose,  in  part,  that  a  docket  is  required  to  be  made.  If, 
therefore,  he  pays  debts  of  a  lower  rank  first  and  thus  exhausts 
the  assets,  he  shall  be  held  liable  to  pay  out  of  his  own  estate  such 
judgments  or  decrees,  or  preferred  demands,  as  shall  be  thus  de- 
frauded. {Toller,  278,  292.)  If,  for  example,  he  should  pay  a 
creditor  at  large,  and  leave  unsatisfied  a  preferred  debt  due  to  the 
United  States,  he  would  be  held  liable  to  the  extent  of  the  assets 
which  he  had  thus  improperly  distributed. 

In  analogy  to  this  principle,  it  would  seem  that  if  an  executor 
or  administrator  pays  the  whole  of  a  debt  due  to  one  creditor  when 
the  assets  admit  only  a  proportionate  part  of  it  to  be  satisfied,  and 
thus  diminishes  the  ratable  proportion  of  the  other  creditors,  he 
would  be  answerable  out  of  his  own  estate  to  make  good  the  loss 
occasioned  by  such  erroneous  payment.  At  common  law  it  was 
required  to  create  this  liability,  that  the  executor  or  administrator 
had  notice  of  the  existence  of  the  other  debts,  or  made  the  pay- 
ment so  precipitately  after  the  testator's  death  as  to  be  evidence 
of  fraud.  ( Toller,  192.)  The  means  of  obtaining  that  knowledge 
now,  are  most  ample.  An  executor  or  administrator  can,  in  no 
instance,  be  compelled  even  by  the  surrogate  to  pay  any  debt  of 
the  testator  or  intestate  until  after  six  months  shall  have  elapsed, 
from  the  granting  of  letters  testamentary  or  of  administration. 
(2  R.  S.  116,  §  18.)  The  statute  seems  to  contemplate  that  he 
cannot  know  with  certainty  the  extent  of  the  demands  against  the 
estate  so  as  to  be  able  to  pay  without  the  order  of  the  surrogate, 
until  after  the  expiration  of  the  six  months'  notice  inserted  in  the 
newspapers,  under  the  direction  of  the  surrogate,  and  which  notice 
cannot  be  given  until  at  least  six  months  have  elapsed  from  the 
letters  testamentary  or  of  administration.     (Nichols  v.  Chapman, 


PERSONAL  ESTATE—THE  PRIMARY  FUND.  291 

9  Wend.  456,  457.     2  R.  S.  88,  89.     Fitzpatrick  v.  Brady, 
6  Hill,  582.) 

Hence,  in  the  settlement  of  estates,  when  the  testator  or  intes- 
tate has  been  engaged  in  extensive  business  in  his  lifetime,  and 
was  much  indebted,  and  his  solvency  questionable,  it  would  be 
dangerous  for  an  executor  or  administrator,  without  the  order  of 
the  surrogate,  to  make  any  payment  in  whole  or  in  part  of  a  debt 
of  the  deceased,  until  after  the  expiration  of  six  months  from  the 
date  of  his  letters  ;  and  it  is  not  deemed  prudent  to  distribute  the 
assets  until  after  the  expiration  of  the  year  from  the  date  of  the 
letters  and  the  demands  have  been  presented  and  allowed,  in  pur- 
suance of  the  six  months'  notice  before  mentioned.  The  statute, 
in  truth,  virtually  allows  the  executors  and  administrators  eighteen 
months  after  the  granting  to  them  of  letters  to  settle  the  estate, 
for  the  purpose  of  securing  more  effectually  the  leading  feature  of 
the  system,  to  wit,  a  pro  rata  distribution  of  the  assets  among 
the  creditors  in  case  of  a  deficiency.  {Fitzpatrick  v.  Brady, 
6  Hill,  582.) 

There  is  much  learning  in  the  old  books  relative  to  pleading  by 
executors  or  administrators.  They  were  bound  to  plead  a  debt  of 
a  higher  nature  in  bar  of  an  action  brought  against  them  for  a 
debt  of  an  inferior  nature,  and  riens  ultra,  if  he  had  not  assets  for 
both,  otherwise  it  would  be  an  admission  of  assets  to  satisfy  both 
debts ;  unless  it  appeared  that  he  had  no  notice  of  the  higher  debt. 
But  all  this  doctrine  is  superseded  by  the  revised  statutes.  (But- 
ler v.  Hempstead's  Adm'rs,  18  Wend.  666.) 

Where  there  is  no  will,  or  the  will  does  not  otherwise  direct,  the 
personal  estate,  except  in  the  cases  which  have  been  mentioned,  is 
the  primary  fund  for  the  payment  of  debts  and  legacies.  {Lup- 
ion  v.  Lupton,  2  John.  Ch.  614.)  The  usual  clause  devising  all 
the  rest  and  residue  of  his  real  and  personal  estate  not  before  de- 
vised, is  not  sufficient  to  show  an  intention  to  charge  the  realty ; 
nor  is  a  mere  direction  that  all  debts  and  legacies  arc  to  be  fully 
paid.     {Id.) 

Independently  of  any  express  statute  regulation,  it  would  be 
the  duty  of  the  executor  or  administrator  to  convert  the  assets  into 
money,  in  order  to  pay  the  debts  and  legacies  of  the  deceased. 
The  statute  which  declares  this  duty,  permits  this  sale  to  be  pub- 


292  SALE  OF  PERSONAL  ASSETS. 

lie  or  private,  and,  except  in  the  city  of  New  York,  to  be  on  credit, 
not  exceeding  one  year,  with  approved  security.  The  executor  or 
administrator  is  not  responsible  for  any  loss  happening  by  such 
sale,  when  made  in  good  faith,  and  with  ordinary  prudence. 
(2  R.  S.  87,  §  25.) 

It  would  be  unwise,  if  not  improper,  to  give  a  credit  which 
might  extend  beyond  the  eighteen  months  allowed  to  the  executors 
or  administrators  to  close  their  accounts.  Great  caution  should 
be  practiced  in  taking  security ;  especially  as  both  the  giving  of 
credit  and  taking  personal  security,  in  cases  of  sales  of  property 
held  in  trust,  are  innovations  upon  the  practice  of  courts  of  equity. 
In  making  such  sales,  such  articles  as  are  not  necessary  for  the 
support  and  subsistence  of  the  family  of  the  deceased,  or  as  are 
not  specifically  bequeathed,  should  be  first  sold ;  and  articles  so 
bequeathed,  should  not  be  sold  until  the  residue  of  the  personal 
estate  has  been  applied  to  the  payment  of  debts.  (Id.  26.) 
This  subject  has  already  been  adverted  to  in  our  chapter  on  tak- 
ing an  inventory,  and  it  has  been  shown  that  doubtful  claims  may 
be  compromised  by  the  executor  or  administrator  with  the  appro- 
bation of  the  surrogate.     (See  a?ite,  ch.  9,  §  4.) 

At  common  law  the  surrogate  has  no  jurisdiction  over  the  real 
estate,  nor  could  the  real  estate  be  sold  by  the  executors  or  ad- 
ministrators for  the  payment  of  debts.  At  present,  when  the  per- 
sonal representatives  discover  that  the  personal  estate  is  insuffi- 
cient for  this  purpose,  they  may,  at  any  time,  within  three  years, 
after  the  granting  of  their  letters  testamentary  or  letters  of  ad- 
ministration, apply  to  the  surrogate  for  authority  to  mortgage, 
lease  or  sell  so  much  of  the  real  estate  of  their  testator  or  intes- 
tate, as  shall  be  necessary  to  pay  such  debts.  This  application 
cannot  be  made  until  after  the  filing  an  inventory  according  to 
law.  (2  R.  S.  100.)  The  object  of  this  sale  is  to  raise  a  fund 
for  the  payment  of  debts.  As  this  did  not  belong  to  the  common 
law  jurisdiction  of  the  surrogate,  and  has  been  conferred  by  stat- 
ute, and  as  other  tribunals  have  a  jurisdiction  in  the  collection  of 
debts  against  deceased  persons  to  reach  the  real  estate  left  by 
them,  the  consideration  of  the  practice  of  the  surrogates'  courts  in 
this  respect,  falls  more  appropriately  under  the  third  part  of  this 
treatise.     (See  post,  Part  3,  ch.  1.) 


PAYMENT  OF  DEBTS.  293 

After  the  payment  of  debts,  the  next  duty  of  an  executor  is  to 
pay  the  legacies  bequeathed  by  the  testator.  This  is  a  duty 
which  belongs  more  especially  to  an  executor,  but  the  rules  by 
which  it  is  regulated  are  equally  applicable  to  an  administrator 
cum  testamento  annexo.  The  court  of  chancery  formerly,  and 
now  the  supreme  court,  has  a  jurisdiction  over  executors  with  re- 
spect to  legacies,  more  ample  than  that  possessed  by  the  surro- 
gate. The  jurisdiction  of  the  latter  court  is  subordinate  to  that  of 
the  supreme  court,  and,  in  some  respects,  concurrent  with  it.  The 
further  consideration  of  this  branch  of  the  subject  belongs  to  the 
third  part  of  this  treatise,  which  is  devoted  to  subjects  over  which 
surrogates  have  not  an  exclusive  jurisdiction,  and  to  some  peculiar 
statutory  proceedings. 


CHAPTER  XII. 

OP  THE  RIGHTS  AND  DUTIES  OF  EXECUTORS  AND  ADMINISTRA- 
TORS, WITH  RESPECT  TO  THE  PAYMENT  OF  THE  DEBTS  OF 
THE  DECEASED. 

Section  I. 

Of  the  rights  and  duties  of  executors  and  administrators  with 
respect  to  calling-  for  a  presentation  of  claims  against  the 
estate,  and  herein  of  enforcing  payment  before  the  time  to 
account. 

The  creditors  of  a  deceased  person  have  a  stronger  claim  on  the 
property  which  he  leaves  at  his  death,  than  his  legatees.  Hence, 
except  in  some  special  cases  provided  for  by  law,  the  debts  must 
be  paid  before  legacies. 

There  may  be  cases  where  the  assets  are  undoubtedly  sufficient 
to  pay  all  the  debts  and  legacies.  In  such  a  case,  where  all  the 
parties  entitled  as  legatees  and  distributees  are  of  full  age,  and 
are  willing  amicably  to  settle  the  estate,  no  reason  is  perceived 
why  they  may  not  do  so  without  waiting  for  the  expiration  of  the 
eighteen  months,  which  at  present  executors  and  administrators 


294  ADVERTISING  FOR  CLAIMS. 

practically  have  for  this  purpose.     But  in  doing  so,  they  act  at 
their  peril. 

The  statute,  however,  is  made  to  embrace  every  class  of  cases, 
in  a  great  majority  of  which  it  is  impossible  to  know  at  once,  either 
the  condition  and  amount  of  the  assets,  or  the  nature  and  extent 
of  the  claims  against  them.  As  the  policy  of  the  law  is  to  cause  an 
equal  pro  rata  distribution  of  the  assets  among  all  the  creditors, 
after  satisfying  certain  preferences  considered  in  the  last  chapter, 
it  was  obviously  necessary  that  some  means  should  be  adopted  by 
which  the  executors  or  administrators  might  ascertain  the  amount 
of  the  claims  against  the  estate  before  they  could  be  compelled  to' 
make  payment,  or  a  general  distribution. 

For  this  purpose,  six  months  are  allowed  from  the  date  of  the 
letters  testamentary  or  of  administration  to  collect  the  assets,  and 
to  ascertain  the  extent  of  the  claims  against  the  estate.  If  within 
this  time  the  executor  or  administrator  does  not  ascertain  all  the 
demands  against  the  deceased,  and  if  he  wishes,  in  due  time,  to 
render  an  account  and  be  discharged  from  further  responsibility, 
he  may,  at  any  time  after  the  expiration  of  six  months  from  the 
date  of  his  letters,  insert  a  notice,  once  a  week  in  each  week  for 
six  months,  in  some  newspaper  printed  in  the  county,  and  in  so 
many  other  newspapers  as  the  surrogate  may  deem  most  likely  to 
give  notice  to  the  creditors  of  the  deceased,  requiring  all  persons 
having  claims  against  the  deceased  to  exhibit  the  same,  with  the 
vouchers  thereof,  to  the  executor  or  administrator,  at  his  place  of 
transacting  business,  to  be  specified  in  the  notice,  at  or  before  the 
day  therein  named,  which  shall  be  at  least  six  months  from  the 
first  publication  of  the  notice.  (2  R.  S.  88,  §  34.)  The  usual 
practice  is  for  the  surrogate,  on  the  application  of  the  executor  or 
administrator,  in  an  informal  way,  after  the  expiration  of  six  months 
from  the  date  of  the  letters,  to  enter  an  order  in  his  minute  book, 
requiring  the  publication  of  notice  as  prescribed  by  law,  and  desig- 
nating the  paper  or  papers  in  which  it  is  to  be  published.  It  is 
a  compliance  with  the  law  if  published  in  a  single  paper,  if  that 
be  so  ordered  by  the  surrogate.  (Dolbecr  v.  Casey,  19  Barb.  149. 
Appendix,  No.  69.) 

Although  not  required  by  the  statute,  it  is  the  most  correct  prac- 
tice to  file  with  the  surrogate  the  affidavit  of  due  publication  of  the 


ADVERTISING  FOR  CLAIMS.  295 

notices,  in  pursuance  of  the  former  order,  and  to  enter  in  tjie  min- 
ute book  another  order,  directing  the  executor  or  administrator 
to  proceed  and  pay  the  different  claimants  the  sums  to  which  each 
is  respectively  entitled. 

Upon  any  claim  being  presented  against  the  estate  of  the  de- 
ceased, the  executor  or  administrator  is  authorized  to  require  satis- 
factory vouchers  in  support  thereof;  and  also  the  affidavit  of  the 
claimant  that  such  claim  is  justly  due,  that  no  payments  have  been 
made  thereon,  and  that  there  are  no  offsets  against  the  same,  to  the 
knowledge  of  the  claimant.  This  oath  may  be  administered  by  any 
justice  of  the  peace  or  other  officer  authorized  to  administer  oaths. 
(2  R.  S.  88,  §  35.) 

It  is  recommended  to  executors  or  administrators  always  to  pur- 
sue this  course,  and  more  especially,  where  their  testator  or  intes- 
tate has  been,  in  his  lifetime,  engaged  in  extensive  business. 
(  Whitmore  v.  Foose,  1  De?iio,  159.) 

It  would  seem,  by  necessary  implication,  that  if  the  executor  or 
administrator  is  satisfied  of  the  validity  of  the  claim  and  of  the 
amount  due.  from  the  vouchers  and  affidavit  presented,  he  may 
allow  it  and  pay  it,  in  the  due  course  of  administration,  without 
further  proof.  The  statute  seems  not  to  have  clothed  the  surro- 
gate with  jurisdiction  to  try  a  contested  claim.  {Dissosivay  v. 
The  Bank  of  Washington,  24  Barb.  60.  Wilcox  v.  Smith, 
26  id.  316.)  Hence,  if  the  executor  or  administrator,  notwithstand- 
ing the  oath  and  vouchers,  doubt  the  claim,  there  should  be  some 
way  pointed  out  for  removing  those  doubts,  or  enabling  the  cred- 
itor to  assert  his  claim.  This  is  done  by  the  statute,  which  au- 
thorizes the  executors  or  administrators  in  such  a  case,  with  the  ap- 
probation of  the  surrogate,  to  enter  into  an  agreement  in  writing 
with  the  claimant  to  refer  the  matter  in  controversy  to  three  dis- 
interested persons,  or  to  a  disinterested  person,  to  be  approved  by 
the  surrogate.  On  filing  this  agreement  in  the  clerk's  office  of  the 
supreme  court  of  the  county  in  which  the  parties  or  either  of  them 
reside,  a  rule  may  be  entered,  either  in  term'or  vacation,  referring 
the  matter  in  dispute  to  the  person  or  persons  so  selected.  The 
referees  or  referee  so  appointed  proceed  to  hear  and  determine  the 
matter,  and  make  their  or  his  report  therein  to  the  court  in  which 
the  rule  for  their  appointment  is  entered.     (2  R.  S.  88,  89,  §  36, 


296  L1IMTATI0N— COSTS. 

37,  as  amended  in  1859,  Laws,  p.  569.)  The  subsequent  practice 
■will  be  found  in  treatises  on  the  practice  of  the  supreme  court,  and 
does  not  fall  within  the  scope  of  this  work.     (Appendix,  No.  70.) 

If  a  claim  is  thus  presented  and  disputed,  and  if  the  parties  do 
not  agree  to  refer  it,  and  if  the  claimant  does  not  within  six  months 
after  it  is  rejected,  if  the  claim  is  then  due,  otherwise,  within  six 
months  after  the  same  or  some  part  of  it  becomes  due,  commence 
an  action  against  the  executors  or  administrators  for  the  recovery 
thereof,  he  is  to  be  forever  barred  from  maintaining  any  action 
thereon.  And  no  action  after  that  period  can  be  maintained 
thereon  by  any  person  deriving  title  thereto  from  such  claimant. 
(2  R.  S.  89,  §  38.) 

There  are  two  cases  which  arise  in  this  stage  of  the  matter 
which  have  often  received  the  consideration  of  the  courts  ;  the  one 
is  with  regard  to  the  short  statute  of  limitations,  and  the  other 
with  regard  to  the  question  of  the  plaintiff's  right  to  costs,  and 
out  of  what  fund  they  are  to  be  paid.  Both  these  questions  be- 
long in  the  first  instance,  to  the  court  in  which  the  action  is  tried, 
namely,  the  supreme  court,  and  neither  of  them  can  ever  be  litiga- 
ted before  the  surrogate.  The  discussion  of  them  does  not  fall 
within  the  scope  of  this  treatise ;  and,  therefore,  a  few  remarks 
only  will  be  added :  1.  If,  on  a  demand  being  presented  to  an 
executor  or  administrator  pursuant  to  the  statute,  he  asks  time  to 
inquire  into  and  examine  it,  he  will  not  be  allowed  to  avail  himself 
of  the  short  limitation  without  giving  decisive  evidence  of  having 
rejected  it  more  than  six  months  before  the  suit  was  brought. 
{Reynolds  v.  Collins,  5  Hill,  36.)  It  is  perfectly  proper  for  the 
executor  or  administrator  to  take  time  to  investigate  before  decid- 
ing ;  but  the  statute  giving  the  short  limitation  will  not  begin  to 
run  till  he  has  unequivocally  rejected  the  claim.  2.  With  regard 
to  costs,  it  is  now  well  settled  that  to  entitle  the  plaintiff  to  costs 
of  the  action  against  the  executors  or  administrators,  one  of  two 
things  must  occur,  to  wit,  either,  1.  a  refusal  on  their  part  to 
refer  the  claim  after  they  have  disputed  it,  or  2.  an  unreasonable 
resistance  or  neglect  of  payment,  after  it  has  been  presented.  A 
mere  rejection  of  the  claim  is  not  a  substitute  for  a  refusal  to 
refer.  (Bnllock  v.  Bogardus,  1  Denio,  276.  Fort  v.  Gooding, 
9  Barb.  390.)     The  dictum  at  page  394,    "  that  an  unqualified 


PRESENTING  CLAIMS.  297 

rejection  of  the  claim,  unaccompanied  with  an  offer  to  refer,  is 
equivalent  to  a  refusal  to  refer,"  is  contrary  to  the  introductory 
part  of  the  opinion,  has  frequently  been  overruled,  and  cannot  be 
supported.     (See  12  How.  282.     15  id.  304.     16  id.  407.) 

If  the  executors  or  administrators  omit  to  give  the  notice,  as 
required  by  the  statute,  no  laches  is  imputable  to  the  creditor  if 
he  fails  to  present  his  claim  till  after  the  year  has  expired  from 
the  granting  of  letters.  (Fort  v.  Gooding-,  supra.)  No  other 
limitation  can  then  be  insisted  on.  but  the  ordinary  statute  of  limi- 
tations. (Flagg  v.  Ruden,  1  Bradf.  193.)  The  creditor  is  not 
bound  to  exhibit  the  evidence  of  his  claim,  or  make  oath  of  the 
justice  of  it,  unless  required  to  do  so  by  the  executors  or  adminis- 
trators. (Gansevort  v.  Nelson,  6  Hill,  389.)  Nor  does  the  omis- 
sion of  the  latter  to  publish  the  notice  to  exhibit  claims,  subject 
them,  as  a  matter  of  course,  to  costs,  in  case  the  creditor  prosecutes 
them  in  the  supreme  court,  and  recovers  judgment.  (Bullock  v. 
Bogardus,  supra.  Russell  v.  Lane,  1  Barb.  S.  C.  R.  527. 
Fort  v.  Gooding,  supra,  overriding  in  this  respect  Harvey  v. 
Skillman,  22  Wend.  571.)  Nor  must  the  creditor  wait  until  the 
publication  of  notice,  before  exhibiting  his  claim.  He  may  present 
it  any  time  after  the  appointment  of  the  executors  or  administra- 
tors, either  with  or  without  vouchers  at  his  election.  If  the 
executors  or  administrators  desire  to  see  the  evidence  of  the  claim, 
or  require  an  affidavit  of  the  claimant,  they  must  say  so.  ( Ganse- 
vort v.  Nelson,  supra.  Russell  v.  Lane,  supra.)  If,  however,  he 
presents  it  before  the  publication  of  notice,  and  the  notice  to  ex- 
hibit claims  be  afterwards  published,  he  should  present  it  again 
within  the  time  limited  for  that  purpose.  (  Whitmore  v.  Foose, 
supra.) 

On  the  expiration  of  the  six  months  notice,  the  executors  or 
administrators  have  a  right  to  assume  that  the  debts  and  claims 
exhibited  to  them  are  all  that  exist  against  the  deceased ;  and 
they  are  authorized  to  make  payment  upon  that  hypothesis.  And 
in  case  a  suit  should  be  brought  against  them  on  a  claim  not  pre- 
sented, in  pursuance  of  the  said  notice,  they  are  not  chargeable  for 
any  assets  or  moneys  that  they  may  have  paid  in  satisfaction  of 
any  claims  of  an  inferior  degree,  or  of  any  legacies,  or  in  making 
distribution  to  the  next  of  kin,  before  such  suit  was  commenced, 

38 


098  OMISSION  TO  PRESENT  CLAIMS. 

but  may  prove  such  notice  published  as  aforesaid,  and  payment 
and  distribution,  in  support  of  their  plea  of  having  fully  adminis- 
tered the  estate  of  the  deceased.  The  plaintiff  in  such  action  is 
onlyjmtitled  to  recover  to  the  extent  of  the  assets  unadrninistered 
at  the  commencement  of  the  suit,  or  he  may  take  judgment  of 
assets  in  futuro.  (2  R.  S.  89,  §§  39,  40.  Baggott  v.  Boidgcr, 
2  N.  Y.  Sup.  C.  R.  160.  Parker's  Ex'rs  v.  Gainer's  Ex'rs, 
17  Wend.  560.  Allen  and  wife  v.  Bishop's  Ex'rs,  25  Wend.  414.) 
The  whole  administration  seems  to  be  committed  to  the  surrogate, 
and  the  common  law  courts  are  reduced  to  little  more  than  instru- 
ments of  liquidation.     {Per  Cowen,  J.  17  Wend.  650.) 

The  omission  to  exhibit  a  claim  to  the  executor  or  administrator 
within  the  time  prescribed  in  the  notice,  does  not  bar  the  claimant 
from  recovering  the  same  of  the  next  of  kin  or  the  legatees  to 
whom  the  assets  have  been  paid  over  by  the  executor  or  adminis- 
trator. (2  R.  S.  90,  §  42.)  The  policy  of  the  law  is  not  so  much 
to  defeat  a  just  claim,  as  to  protect  persons  acting  in  a  representa- 
tive capacity  from  being  harassed  with  suits,  and  to  fix  a  reason- 
able limit  to  their  liability.  The  remedy,  in  such  cases,  against 
the  distributees  to  whom  the  assets  have  been  paid,  cannot  be  ob- 
tained in  the  surrogated  court,  but  must  be  prosecuted  in  a  court 
having  jurisdiction,  the  supreme  court,  superior  court,  (fee,  as  the 
case  may.  What  is  necessary  to  be  averred  and  proved  in  such 
court,  will  be  seen  in  the  adjudged  cases  where  various  questions 
have  been  discussed.  (Schermerhom  v.  Barhydt,  9  Paige,  28,  46. 
Leonard  v.  Morris,  Id.  93.  Wilkes  v.  Harper,  1  Com.  586. 
Mersereau  v.  Ryerss,  3  id.  261.) 

A  debt  against  the  estate  cannot  with  safety  be  paid  by  an 
executor  or  administrator,  within  the  first  six  months  after  the 
date  of  the  letters  testamentary  or  of  administration.  If  he  pays 
any  thing  before  that  time,  he  does  it  at  his  peril.  If  the  assets 
prove  to  be  insufficient  to  pay  all  the  debts,  and  he  has,  out  of  a 
mistaken  view  of  the  matter,  prematurely  paid  one,  or  more,  his  or 
their  whole  claim,  he  will  be  responsible  to  the  other  claimants  for 
the  excess  thus  paid,  beyond  the  share  to  which  they  were  enti- 
tled. After  the  first  six  months,  and  even  before  the  expiration  of 
the  notice  given  in  pursuance  of  the  statute,  the  executor  or  ad- 
ministrator may  be  compelled,  by   order  of  the  surrogate  upon 


ENFORCING  JUDGMENTS.  299 

the  application  of  a  creditor,  to  pay  any  debt  or  a  proportional 
part  thereof.  (2  R.  S.  116,  §  18.)  The  statute  is  not  mandatory 
upon  the  surrogate,  but  permissive.  Such  order,  therefore, 
should  not  be  made  by  the  surrogate,  before  the  time  limited  for 
exhibiting  claims  has  elapsed,  except  it  clearly  appears  that  the 
debt  sought  to  be  paid  in  advance  of  the  other  creditors  is  undis- 
puted and  not  barred  by  the  statute  of  limitations,  and  from  the 
condition  of  the  assets,  that  the  estate  is  amply  sufficient  to  pay 
all  demands  which  probably  exist  against  it.  {Fitzpatriek  v. 
Brady,  6  Hill,  581.  McCartee  v.  Camel,  1  Barb.  Ch.  R.  456, 
465.     Kidd  v.  Chapman,  2  id.  424.) 

It  has  already  been  stated,  that  the  surrogate  has  no  power,  on 
such  an  application,  to  try  contested  suits.  (Dissosway  v.  The 
Bank  of  Washington,  24  Barb.  S.  C.  R.  60.)  If  there  be  a  de- 
fense to  such  a  claim,  it  should  be  stated  in  due  season,  that  the 
claimant  may  rebut  it.     ( Van  Vcck  v.  Burroughs,  6  Barb.  341.) 

Section  II. 

Of  enforcing  the  payment  of  judgments  against  executors  or 
administrators. 

There  are  three  classes  of  cases  which  fall  under  our  considera- 
tion in  discussing  this  subject.  1.  Where  the  judgment  has  been 
obtained  against  the  testator  or  intestate  in  his  lifetime,  but  no 
execution  issued  before  his  death.  2.  Where  a  judgment  has  been 
obtained  against  executors  or  administrators  for  a  debt  of  their 
testator  or  intestate  by  default.  3.  Where  a  judgment  for  a  debt 
of  the  deceased  has  been  obtained  against  the  executors  or  admin- 
istrators after  a  trial  at  law  on  the  merits. 

In  the  first  class  of  cases,  viz.  where  the  judgment  was  obtained 
against  the  testator  or  intestate  in  his  lifetime,  and  no  execution 
issued  previous  to  his  death,  it  is  said  no  scire  facias  is  necessary 
to  make  the  executors  or  administrators  parties  to  the  action,  but 
that  an  execution  may  be  issued  upon  the  judgment  by  order  of 
the  surrogate,  after  an  account  shall  have  been  rendered  and  set- 
tled before  him.  (2  R.  S.  88,  f32.  The  People  v.  The  Judges  of 
Albany  Co.,  9  Wend.  488  et  scq.  Butler  v.  Hempstead's  Ex'rs, 
18  Wend.  667.    Dox  v.  Backenstose,  12  id.  542.)    The  account 


300  ENFORCING  JUDDGMENT. 

here  referred  to  is  the  final  account  which  executors  or  administra- 
tors can  be  required  to  render  at  the  expiration  of  eighteen  months 
from  the  date  of  their  letters. 

The  second  class  of  cases  is  where  a  judgment  has  been  ob- 
tained against  executors  or  administrators  for  a  debt  of  their  tes- 
tator or  intestate  by  default.  This  case  falls  within  the  same 
rule.  No  execution  can  be  issued  upon  the  judgment  against  the 
executors  or  administrators,  until  an  account  shall  have  been  ren- 
dered and  settled,  or  unless  on  an  order  of  the  surrogate.  And  if 
an  account  has  been  rendered  to  the  surrogate  by  such  executor 
or  administrator,  execution  shall  issue  only  for  the  sum  that  shall 
have  appeared,  on  the  settlement  of  such  account,  to  have  been  a 
just  proportion  of  the  assets  applicable  to  the  judgment.  (See 
same  cases.)  The  account  referred  to  here  is  believed  to  be  the 
final  account  of  the  executors  or  administrators.  It  is  not  believed 
that  it  was  intended  by  the  legislature  that  the  payment  of  the 
judgment  in  either  of  the  above  classes,  was  to  be  anticipated  by 
any  order  of  the  surrogate.  This  will  appear  obvious  when  we 
come  to  consider  the  next  class  of  cases. 

The  third  class  is  where  a  judgment  for  a  debt  of  the  deceased 
has  been  obtained  against  the  executors  or  administrators  after  a 
trial  at  law  on  the  merits.  With  respect  to  this  class,  it  is  enact- 
ed, that  where  a  creditor  shall  have  obtained  a  judgment  against  any 
executor  or  administrator,  after  a  trial  at  law  upon  the  merits, 
he  may,  at  any  time  thereafter,  apply  to  the  surrogate  having  ju- 
risdiction for  an  order  against  such  executor  or  administrator,  to 
show  cause  why  an  execution  on  such  judgment  should  not  be 
issued.  (2  R.  8.  116,  §  19.)  This  is  the  only  case  in  which  the 
surrogate  has  jurisdiction  to  order  the  issuing  of  an  execution 
against  an  executor  or  administrator,  before  the  rendering  of  the 
final  accounts  of  the  estate.  In  this  case  the  application  may  be 
made  at  any  time.  But  in  no  case  can  it  be  issued  Avithout  the 
order  of  the  court,  either  on  special  application  or  by  the  final 
decree. 

The  proceedings  are  briefly  stated  in  the  statute.  The  surro- 
gate to  whom  the  application  is  made  is  required  to  issue  a  citation, 
requiring  the  executor  or  administrator  complained  of,  at  a  certain 
time  and  place  therein  to  be  named,  to  appear  and  account  before 


ENFORCING  JUDGMENTS.  301 

him ;  and  if  upon  such  accounting  it  shall  appear  that  there  are 
assets  in  the  hands  of  such  executor  or  administrator,  properly  ap- 
plicable under  the  provisions  of  the  statute,  to  the  payment  in 
whole  or  in  part  of  the  judgment  so  obtained,  the  surrogate  is  re- 
quired to  make  an  order  that  execution  be  issued  for  the 
amount  so  applicable.  (2  R.  S.  116,  §  20.)  This  order,  by  the 
next  section,  is  made  conclusive  evidence  that  there  are  sufficient 
assets  in  the  hands  of  the  executor  or  administrator  to  satisfy  the 
amount  for  which  the  execution  is  directed  to  be  levied ;  and  by 
the  following  section  it  is  provided,  that  if  the  whole  sum  for 
which  a  judgment  may  have  been  obtained,  shall  not  be  collected 
on  the  execution  so  directed  to  be  issued,  and  assets  shall  thereaf- 
ter come  into  the  hands  of  the  executors  or  administrators,  the 
surrogate  is  required  to  make  another  order  for  issuing  execution 
upon  the  application  of  the  creditor,  his  personal  representatives 
or  assignees,  and  to  proceed  in  the  same  manner  from  time  to  time, 
whenever  assets  shall  come  to  the  hands  of  the  executors  or  ad- 
ministrators, until  the  judgment  is  satisfied. 

There  may  be  an  appeal  from  this  order,  but  it  is  not  to  operate 
as  a  stay  of  proceeding,  unless  security  is  given  conditioned  for  the 
payment  of  the  whole  sum  directed  to  be  levied,  with  interest,  in 
case  the  order  appealed  from  is  confirmed.  (2  R.  S.  116,  §  21.) 
There  is  no  appeal  from  the  order  of  the  surrogate  directing  an 
execution  to  be  issued  on  any  other  judgment  than  after  a  trial  at 
law  upon  the  merits.  (Davies  v.  Skidmore,  5  Hill,  503.)  It  is 
quite  obvious  that  no  appeal  would  be  required  except  the  appeal 
from  the  final  decree.  As  no  separate  order  is  made  by  the  surro- 
gate, directing  execution  to  issue  in  advance  of  the  final  settle- 
ment, there  is  nothing  to  appeal  from. 

The  mode  of  obtaining  an  order  from  the  surrogate  for  the  pay- 
ment of  a  debt,  before  the  time  for  exhibiting  claims  has  elapsed, 
or  for  an  order  for  the  issuing  execution  against  an  executor  or  ad- 
ministrator, after  a  trial  at  law  on  the  merits,  is  by  petition  to  the 
surrogate,  briefly  stating  such  facts  as  would  entitle  the  creditor 
to  the  interposition  of  the  court,  and  asking  for  the  appropriate 
relief.  The  petition  should  be  verified.  On  filing  it,  an  order 
should  be  entered  in  the  minutes  directing  a  citation  to  issue  re- 


302  OF  PAYMENT  OF  DEBTS. 

quiring  the  executor  or  administrator,  at  a  certain  specified  time 
and  place,  to  appear  and  account  before  him,  and  to  show  cause 
why  execution  should  not  issue  on  the  said  judgment. 

The  statute  does  not  prescribe  the  time  of  service  ;  it  is,  there- 
fore, within  the  discretion  of  the  surrogate,  and  should  be  governed 
by  the  practice  in  analogous  cases. 

If  the  parties  appear  on  the  return  of  the  citation,  and  the  ex- 
ecutors or  administrators  wish  to  contest  the  right  of  the  plaintiff  to 
an  execution  to  the  whole  or  any  part  of  the  amount  of  the  judg- 
ment, or  to  the  whole  or  any  part  of  the  debt,  if  the  claim  was  not 
reduced  to  judgment,  they  should  interpose  such  answer  in  writing 
as  is  adapted  to  the  nature  of  the  defense. 

If  the  defense  in  either  case  contests  the  liability  of  the  execu- 
tors or  administrators,  on  the  ground  of  the  original  invalidity  of 
the  claim,  or  sets  up  payment,  the  statute  of  limitations,  or  other 
defense  requiring  a  trial,  the  surrogate  should,  in  my  judgment, 
dismiss  the  application,  and  leave  the  parties  to  their  remedy  by 
action  at  law,  or  by  reference,  as  the  case  may  be.  The  only  con- 
test which  the  surrogate  can  entertain,  in  this  stage  of  the  pro- 
ceedings, has  reference  to  the  state  of  the  accounts  and  the  condi- 
tion of  the  assets.  On  the  final  accounting,  where  all  parties 
interested  in  the  estate  have  notice,  and  have  a  right  to  be  heard, 
the  surrogate  must  necessarily  hear  and  decide  such  contests  as 
arise,  as  well  with  respect  to  the  original  validity  of  the  claims 
presented,  as  any  legal  or  equitable  defense  that  may  exist  to 
them. 

If  disputed  claims  could  be  presented  to  the  surrogate,  in  ad- 
vance of  the  day  for  final  settlement,  and  be  heard  and  allowed  by 
the  surrogate,  it  would  be  in  the  power  of  the  party  holding  a  dis- 
honest, or  a  previously  satisfied  claim  against  the  estate,  to  select 
his  own  time,  after  the  first  six  months  from  the  date  of  the  letters, 
and  before  the  expiration  of  the  notice  to  the  creditors.  He  would 
thus  obtain  a  hearing  ex  parte,  and  without  any  active  collusion 
with  the  executors  or  administrators,  obtain  an  order  from  the  sur- 
rogate for  the  payment  of  a  demand,  which  might,  perhaps,  have 
been  disproved,  had  it  been  presented  when  the  other  parties  in- 
terested in  the  estate  had  notice.  The  most  questionable  claims 
would  be  presented  in  this  way.     These  reasons  do  not  apply  to  a 


OF  PAYMENT  OF  DEBTS.  303 

case  where  a  judgment  has  been  obtained  against  the  executors  or 
administrators  after  a  trial  at  law  on  the  merits;  for  in  that  case 
all  have  had  an  opportunity  to  resist  the  recovery,  and  there  is, 
therefore,  nothing  left  for  the  surrogate  but  to  inquire  into  the 
condition  of  the  assets  and  the  other  claims  upon  them. 

There  is,  however,  respectable  authority  on  both  sides  of  this 
question,  and  it  does  not  yet  seem  to  have  been  decided  by  the 
court  of  appeals.  (In  addition  to  the  cases  before  cited,  see  Cam- 
bell  v.  Bruen,  1  Bradf.  125  et  seq.,  and  the  dictum  of  Nelson, 
Ch.  ./.,  in  Butler  v.  Hempstead's  Adm'rs,  18  Wend.  669.  Day- 
ton's Surrogate,  346,  and  note  g,  where  numerous  cases  are 
collected.) 

When  all  the  claims  against  the  estate  are  ascertained,  the  ex- 
ecutors or  administrators  should  proceed  with  due  diligence  to  pay 
the  debts  of  the  deceased,  and  the  legacies.  If  the  assets  are 
ample  for  this  purpose,  he  should  pay  all.  In  such  a  case,  it  will 
not  be  necessary  for  him  to  render  an  account  before  the  surro- 
gate, if  the  parties  interested  are  of  age  and  under  no  disa- 
bility. If,  however,  the  assets  are  insufficient  to  pay  all  the 
debts,  he  must  first  satisfy  the  claims  entitled  to  priority,  and 
make  a  pro  rata  distribution  of  the  residue  among  the  remaining 
creditors.  If  he  has  a  claim  against  the  estate  in  his  own  behalf, 
he  must  cause  it  to  be  allowed  by  the  surrogate,  on  a  citation  to 
the  proper  parties.  (3  R.  S.  175,  5th  ed.  L.  of  1837,  ch.  460, 
§  37.)  If  there  is  property  enough  to  pay  the  debts,  and  only  a 
part  of  the  legacies,  he  must  pay  such  "as  are  entitled  to  a  prefer- 
ence by  the  will,  or  otherwise,  and  divide  the  balance  among  the 
other  legatees,  on  the  principles  applicable  to  such  cases.  If  the 
testator  died  intestate,  the  assets,  after  paying  debts,  must  be  dis- 
tributed to  the  kindred  according  to  the  statutes  of  distributions. 
In  many  instances  this  can  be  satisfactorily  done  without  recourse 
to  legal  proceedings. 

We  shall,  in  a  subsequent  chapter  in  the  third  part,  treat  of  the 
payment  of  legacies,  and  in  another  chapter,  of  the  rendering  the 
final  account  of  executors  and  administrators,  and  of  the  rules  by 
which  the  estates  of  deceased  persons  are  distributed  among  the 
parties  entitled  thereto.  The  executors  or  administrators  may 
always  settle  the  estate  upon  those  principles,  without  resort  to 


304  OF  PAYMENT  OF  DEBTS. 

the  courts,  if  the  parties  desira  it.  But  as  there  are  cases  where 
the  rendering  of  a  final  account  becomes  indispensable,  and  the 
subject  is  discussed  in  a  subsequent  chapter,  it  is  deemed  best,  in 
order  to  prevent  repetition,  to  postpone,  until  then,  the  further 
consideration  of  this  branch  of  the  subject.  (For  forms,  see  Ap- 
pendix. Nos.  71,  72,  &c.  &c.) 


PART  III. 


OF  SUBJECTS  COGNIZABLE  IN  SURROGATES'  COURTS  OF  WHICH  THEY 
HAVE  NOT  EXCLUSIVE  JURISDICTION,  AND  HEREIN  OF  VARIOUS 
STATUTORY  PROCEEDINGS  IN  THOSE  COURTS. 


IN  the  third  section  of  part  first  of  this  treatise  (ante,  page  36,) 
we  stated  the  general  jurisdiction  of  surrogates'  courts  as  it  is 
defined  in  the  revised  statutes.  In  the  second  part  we  have 
discussed  the  subjects  over  which  surrogates  have  exclusive 
original  jurisdiction,  and  the  method  of  proceeding  therein.  It 
has  been  seen  that  those  subjects  fall  within  the  first  and  second 
branch  of  the  section  which  declares  the  general  jurisdiction  of  the 
court,  and  that  they  relate  mainly  to  matters  testamentary  and  of 
intestacy,  and  of  whatsoever  is  incident  thereto.  That  branch  of 
our  subject  is  the  most  important,  and  calls  the  most  frequently 
for  the  exercise  of  the  powers  of  the  court.  It  has  been  treated 
more  fully  and  at  large  than  will  be  necessary  in  considering  the 
other  subjects  over  which  the  court,  either  in  conjunction  with,  or 
auxiliary  to,  other  courts,  or  concurrently  with  them,  exercises 
jurisdiction. 

In  the  third  part  we  propose  to  treat  of  the  practice  of  sur- 
rogates' courts,  in  matters  in  which  they  have  not  exclusive 
jurisdiction.  In  some  of  these  cases  the  court  exercises  a  common 
law  power,  modified  indeed  by  the  statutes  ;  and  in  others  it  merely 
performs  a  duty  enjoined  on  it  by  statute.  The  object  to  be  at- 
tained by  some  of  these  proceedings  is  to  enable  executors  and  ad- 
39 


306  SALE  OF  REAL  ESTATE. 

ministrators  to  acquire  a  fund  for  the  payment  of  debts  by  some 
disposition  of  the  real  estate  of  the  deceased  ;  in  others  to  enforce 
the  payment  of  debts  and  legacies,  and  the  distribution  of  the 
estates  of  intestates ;  to  appoint  guardians  for  minors,  to  remove 
them,  to  direct  and  control  their  conduct  and  to  settle  their  accounts ; 
and  to  cause  the  admeasurement  of  dower  to  widows. 

We  propose  to  treat  of  these  subjects  with  more  or  less  fullness 
in  separate  chapters. 


CHAPTER   I. 

OP  PROCEEDINGS  BY  EXECUTORS  OR  ADMINISTRATORS,  ON 
THEIR  OWN  APPLICATION,  BEFORE  THE  SURROGATE,  TO  OB- 
TAIN AUTHORITY  TO  MORTGAGE;  LEASE  OR  SELL  THE  REAL 
ESTATE  OF  THE  DECEASED  FOR  THE  PAYMENT  OF  DEBTS. 

The  surrogate  has  jurisdiction  to  grant  authority  to  executors 
or  administrators  to  dispose  of  the  real  estate  of  the  testator  for 
the  payment  of  debts,  on  the  application  of  the  executors  or  ad- 
ministrators in  certain  cases  :  and  he  has  also  the  like  jurisdiction, 
on  the  application  of  a  creditor,  when  the  executors  or  administra- 
tors have  failed  to  pay  all  the  debts  of  the  deceased,  and  have  neg- 
lected to  apply  within  the  time  prescribed  by  law  for  an  order  on 
their  own  behalf,  for  such  sale  or  disposition  of  the  realty,  to  com- 
pel them  to  proceed  and  obtain  such  order. 

Section  I. 

Of  the  time  and  manner  of  making  application  for  authority  to 
sell,  lease  or  mortgage  the  real  estate  of  the  deceased,  on  the 
application  of  the  executors  or  administrators,  and  the  pro- 
ceedings thereon,  previous  to  granting  the  order  of  sale. 

One  of  the  natural  consequences  of  the  feudal  principles,  which 
prohibited  the  alienation,  and  of  course  the  incumbering  the  fief 
with  the  debts  of  the  owner,  was  to  exempt  the  real  estate  of  the 
defendant,  after  judgment,  from  an  execution  against  his  lands. 
The  body  of  the  debtor  was  liable  to  be  imprisoned  for  debt,  at  a 


SALE  OF  REAL  ESTATE.  307 

time  when  his  real  estate  could  not  be  seised.  Even  lands  de- 
scended or  devised  were  not,  at  common  law,  liable  for  the  simple 
contract  debts  of  the  ancestor  or  devisor,  nor  for  his  specialties, 
unless  the  heir  was  expressly  bound.  Without  adverting  to  the 
changes  in  the  law  in  this  respect,  in  England,  it  is  sufficient  to 
observe  that  the  rule  was  abrogated  in  this  state  by  the  act  of 
178G,  (1  Greenl.  237,)  and  in  all  cases  heirs  were  made  liable  for 
the  debts  of  their  ancestor  to  the  value  of  the  lands  descended, 
whether  the  debts  were  created  by  simple  contract  or  specialty, 
or  whether  the  heirs  were  named  in  the  contract  or  not.  The 
same  principle  has  hitherto  been  continued  a  part  of  our  jurispru- 
dence and  extended  to  devisees.  (2  R.  S.  452,  §  32.)  But  the 
executors  or  administrators  had  not,  at  common  law,  any  control 
over  the  lands  of  their  testator  or  intestate  by  virtue  of  their  ap- 
pointment. If,  therefore,  the  personal  assets  were  insufficient  to 
pay  the  debts  of  the  deceased,  the  creditor  was  remediless  until 
some  of  the  statutes  allowed  the  real  estate,  or  some  interest  in  it, 
to  be  reached  by  judgment  and  execution  or  by  some  other  statu- 
tory proceeding. 

But,  in  this  state,  the  same  statute  of  1786  which  made  the 
lands  of  the  ancestor  liable  for  his  debts  in  the  hands  of  his  heirs, 
conferred  on  the  court  of  probates  the  power  of  appropriating  the 
real  estate  of  the  deceased  for  the  purpose  of  paying  debts  when- 
ever it  should  be  discovered  that  the  personal  estate  was  insuffi- 
cient for  that  purpose.  At  the  revision  of  the  laws  in  1800,  the 
same  jurisdiction  was  extended  with  some  limitations  to  surrogates 
of  the  different  counties.  This  system,  together  with  various  im- 
provements adopted  from  time  to  time,  and  such  others  as  were 
suggested  by  the  experience  of  near  half  a  century,  were  incorpo- 
rated into  the  revised  statutes  of  1830.  Those  statutes,  and  the 
subsequent  enactments  on  the  same  subject,  contain  all  that  is 
necessary  to  notice  in  this  connection. 

By  the  existing  law,  executors  or  administrators  of  any  deceased 
person,  after  they  shall  have  made  and  filed  an  inventory  accord- 
ing to  law,  if  they  discover  tho  personal  estate  of  their  testator  or 
intestate  insufficient  to  pay  his  debts,  may,  at  any  time,  within 
three  years  after  the  granting  of  their  letters  testamentary  or  of 
administration,  apply  to  the  surrogate  for  authority  to  mortgage, 


308  SALE  OF  REAL  ESTATE. 

lease  or  sell  so  much  of  the  real  estate  of  their  testator  or  intestate, 
as  shall  be  necessary  to  pay  such  debts.  They  may  also  apply  for 
the  sale  of  the  interest  of  the  deceased  in  any  land  held  under  a 
contract  for  the  purchase  thereof.  (2  R.  S.  100,  §  1,  as  amended 
by  act  O/1830,  p.  391.  L.  of  1837,  ch.  460,  §  40.  3  R.  S.  186, 
187,  5th  ed.) 

If  the  original  application  is  made  to  the  surrogate,  within  three 
years  from  the  date  of  the  letters  testamentary  or  of  administra- 
tion, it  satisfies  the  requirement  of  the  act ;  and  the  sale  and  sub- 
sequent proceedings  may  be  completed  after  that  period.  This  is 
obvious  from  the  language  of  the  section,  as  well  as  from  the  pro- 
visions of  the  fifty-third  section,  (2R.  *S*.  109,)  directing  suits  com- 
menced against  heirs  or  devisees,  after  the  expiration  of  that  time  to 
be  stayed  until  the  conclusion  of  the  proceeding  before  the  surrogate 
for  the  sale  of  the  real  estate  of  the  deceased.  Before  the  revised 
statutes,  there  was  no  legislative  limitation  of  the  period  within 
which  an  application  for  the  sale  of  the  real  estate  of  the  deceased 
might  be  made ;  and  this  led  to  great  abuses  until  they  were 
checked  by  the  decision  of  Chancellor  Kent  in  the  case  of  Mooers 
v.  White,  (6  J.  Ch.  R.  360,)  and  by  the  supreme  court  in  Jackson 
v.  Robinson ,  (4  Wend.  436.)  The  chancellor  thought  that  a 
single  year,  after  the  executor  or  administrator  had  entered  upon 
his  trust,  was  long  enough  to  enable  him  to  make  the  application, 
and  that  it  should  not  be  made  after  that  time.  The  supreme 
court,  without  fixing  any  time,  held  that  when  the  delay  had  been 
fourteen  years,  it  was  an  unreasonable  delay,  and  the  surrogate 
ought  not  to  have  entertained  the  proceeding.  But  still  they 
thought  his  error,  in  that  respect,  could  only  be  corrected  by  an 
appeal.  The  statute,  by  fixing  three  years  from  the  date  of  the 
letters,  has  settled  the  question  for  all  subsequent  cases. 

Formerly,  and  under  the  acts  in  force  anterior  to  the  revised 
statutes,  the  application  might  be  made  by  any  one  of  several  ad- 
ministrators, and  by  parity  of  reasoning,  by  any  one  of  several 
executors,  without  joining  their  associates.  (Jackson  v.  Robinson, 
4  Wend.  442,  per  Marcy,  J.)  But  there  is  a  change  in  the 
phraseology  of  the  revised  statutes,  giving  the  power  to  the  exec- 
utors or  administrators,  instead  of  conferring  it  as  in  the  old 


SALE  OF  REAL  ESTATE.  309 

statute  on  any  one  of  the  executors  or  administrators.  Under  the 
revised  statutes  it  has  been  held  that  all  to  whom  letters  testa- 
mentary or  of  administration  have  been  issued  must  unite  in  the 
application,  and  an  order  of  the  surrogate,  allowing  a  part  of  them 
the  authority,  is  erroneous.  {Fitch  v.  Witbeck,  2  Barb.  Ch.  R. 
161.     Sanford  v.  Granger,  12  Barb.  S.  C.  R.  392.) 

The  manner  of  presenting  the  application  to  the  surrogate  is  by 
petition,  duly  verified  by  affidavit.  The  petition  should  state,  in 
addition  to  the  fact  that  an  inventory  had  been  returned  according 
to  law,  1st.  The  amount  of  personal  property  which  has  come  to 
the  hands  of  the  executor  or  administrator ;  2.  The  application 
thereof;  3d.  The  debts  outstanding  against  the  testator  or  intes- 
tate, as  far  as  the  same  can  be  ascertained ;  4th.  A  description  of 
all  the  real  estate  of  which  the  testator  or  intestate  died  seised, 
with  the  value  of  the  respective  portions  or  lots,  and  whether 
occupied  or  not,  and  if  occupied,  the  names  of  the  occupants  ;  and 
5th.  The  names  and  ages  of  the  devisees,  if  any,  and  of  the  heirs 
of  the  deceased.     (2  R.  S.  100,  §  2.)     See  Appendix,  No.  84.) 

The  surrogate  acquires  jurisdiction  of  the  subject  matter  by  the 
presentation  of  the  petition  and  account.  {Sheldon  v.  Wright, 
1  Seld.  513,  per  Foote,  J.  Sibley  v.  Wapple,  2  Smith,  16 
N.  Y.  Rep.  180.)  Even  previous  to  the  revised  statutes,  it  was  not 
required  to  recite  the  preliminary  proofs  on  which  the  surrogate's 
jurisdiction  depended.  {Sheldon  v.  Wright,  supra.)  The  act  of 
1850,  p.  117,  was  passed  to  relieve  the  proceedings  in  surrogates' 
courts  under  the  provisions  of  the  statutes  which  we  are  consider- 
ing, from  the  consequences  of  technical  defects,  not  affecting  the 
merits.  Hence,  it  puts  sales  conducted  under  the  order  of  surro- 
gates' courts  upon  the  same  footing  as  the  like  proceedings  of  courts 
having  original  general  jurisdiction ;  and  prohibits  sales  made  in 
good  faith  from  being  invalidated  or  impeached  for  any  omission  or 
defect  in  any  petition  of  any  executor  or  administrator  under  the 
statutes  above  referred  to,  provided  such  petition  shall  substantially 
show  that  an  inventory  has  been  filed,  and  that  there  are  debts,  or 
is  a  debt,  which  the  personal  estate  is  insufficient  to  discharge,  and 
that  recourse  is  necessary  to  the  real  estate  or  some  of  it,  whereof 
the  deceased  died  seised.     It  is,  however,  desirable  that  the  peti- 


310  SALE  OF  REAL  ESTATE— PARTIES. 

tion  should  state,  at  least,  all  that  is  required  in  the  revised 
statutes. 

Although  the  statement  of  the  foregoing  facts  gives  the  surro- 
gate jurisdiction  of  the  subject  matter,  it  does  not  confer  jurisdic- 
tion over  the  persons  of  the  parties,  whose  rights  are  to  be  affected 
by  the  contemplated  disposition  of  the  real  estate  of  the  deceased. 
(Sheldon  v.  Wright,  1  ISeld.  513.)  Hence  the  necessity  of  a  pro- 
vision for  notifying  those  interested  ■with  the  pendency  of  the  pro- 
ceedings, and  affording  them  an  opportunity  of  shewing  cause 
against  them.  It  is,  as  has  been  often  well  remarked  by  learned 
judges,  a  great  and  fundamental  principle  in  the  administration  of 
justice,  that  no  man  can  be  divested  of  his  rights,  until  he  has  had 
an  opportunity  of  being  heard.  Corwin  v.  Merritt,  3  Barb.  S.  C.  R. 
345,  and  cases  cited.     Sheldon  v.  Wright,  1  Seld.  514.) 

If,  therefore,  it  appears  to  the  surrogate  by  the  petition,  or  other 
competent  evidence,  that  any  of  the  devisees  or  heirs  of  the  deceased 
are  minors,  the  surrogate  is  required  immediately,  and  before 
other  proceedings,  to  appoint  some  disinterested  freeholder  guar- 
dian of  such  minors,  for  the  sole  purpose  of  appearing  for  them,  and 
taking  care  of  their  interest  in  the  proceedings.  (2  R.  iS.  100,  §  3.) 
If  the  minors  are  within  the  county  of  the  surrogate,  they  are  to 
be  served  with  notice  five  days  previously,  of  the  intention  to 
apply  for  the  appointment  of  a  guardian,  that  they  may  be  heard  in 
the  selection  of  such  guardian.  (2  R.  S.  100,  §  4,  as  modified  by 
the  act  o/1837,  ch.  460,  §  38.  3  R.  8.  187,  5th  ed.)  If,  however, 
the  minor  has  a  general  guardian  in  the  county  of  the  surrogate, 
such  guardian  is  to  be  appointed  the  special  guardian.  {Id.) 
Where  the  minor  is  under  fourteen  years  of  age,  the  notice  must 
be  served  on  the  person  in  whose  custody  he  may  be,  or  with 
whom  he  may  live,  or  on  such  relative  as  the  surrogate  shall 
designate,  instead  of  the  service  required  by  the  foregoing  section. 
(Id.)     (Appendix,  Nos.  85,  86.) 

It  has  been  already  stated  in  the  first  part  of  this  treatise,  that 
the  surrogate  is  required  to  keep  a  book  in  which  all  orders  and 
decrees  made  by  him  in  relation  to  the  sale  of  real  estate  should 
be  recorded.  (2  R.  8. 110,  §  60,  Part  1,  §  57.)  The  order  for 
the  appointment  of  a  guardian  ad  litem  should  be  entered  in  this 
book,  and  a  copy  thereof,  or  a  regular  appointment,  under  the  seal 


SALE  OF  REAL  ESTATE— MINORS.  311 

of  tlie  court,  be  delivered  to  him.  The  foregoing  requirement  to 
appoint  the  general  guardian,  guardian  ad  litem  must  be  under- 
stood with  the  qualification  that  such  guardian  has  no  interest  ad- 
verse to  that  of  the  minor,  for  if  he  has,  some  other  discreet  per- 
son should  be  appointed.     (2  Kents  Com.  220.) 

It  was  the  intention  of  the  legislature  which  revised  the  stat- 
utes, that  the  application  should  not  be  made  to  the  surrogate  for 
the  sale  of  the  real  estate  of  the  deceased,  until  after  the  execu- 
tors or  administrators  should  have  rendered  an  account  of  their 
proceeding's  to  the  surrogate,  and  the  same  should  have  been  al- 
lowed and  settled.  (2  R.  S.  100,  §  1.)  Although  this  would 
have  operated  as  a  check  against  improvident  sales,  it  would 
have  greatly  increased  the  expense,  and  have  postponed  the  com- 
mencement of  the  application  until  after  the  expiration  of  eighteen 
months  from  the  date  of  the  letters  testamentary  or  of  adminis- 
tration. It  was,  therefore,  altered  by  the  act  of  1830,  and  the 
executors  or  administrators  are  now  allowed  to  present  their  peti- 
tion whenever  they  discover  the  personal  estate  of  their  testator 
or  intestate  to  be  insufficient  to  pay  his  debts. 

The  petition  having  been  presented,  duly  verified  and  filed, 
and  guardians  having  been  duly  appointed  for  such  parties 
in  interest  as  are  minors,  the  surrogate  is  required  to  proceed  to 
the  further  consideration  of  the  matters.  If  it  thus  appears  to 
him  that  all  the  personal  estate  of  the  deceased,  applicable  to  the 
payment  of  debts,  has  been  applied  to  that  purpose,  and  that  there 
remain  debts  unpaid,  for  the  satisfaction  of  which  a  sale  may  be 
made  under  the  provisions  of  the  statutes,  he  is  required  to  make 
an  order,  directing  all  persons  interested  in  the  estate  to  appear 
before  him,  at  a  time  and  place  therein  to  be  specified,  not  less 
than  six  weeks,  and  not  more  than  ten  weeks  from  the  time  of 
making  such  order,  to  show  cause  why  authority  should  not  be 
given  to  the  executors  or  administrators  applying  therefor,  to 
mortgage,  lease  or  sell  so  much  of  the  real  estate  of  the  testator 
or  intestate,  as  shall  be  necessary  to  pay  such  debts.  (2  R.  S. 
101,  §  5.)  The  application  of  the  personal  estate  to  the  payment 
of  debts,  does  not  necessarily  mean  that  it  has  actually  been  paid 
over  to  the  claimants,  but  set  apart  for  them.  Such  seems  to  be 
the  meaning  of  the  section  as  explained  by  the  41st  section  of  the 


312         SALE  OF  REAL  ESTATE— CLAIMS. 

act  of  1837.  {Ch.  460.  3  R.  S.  189,  §  19,  5tk  ed.)  But  the 
surrogate,  by  the  last  mentioned  section,  is  required  to  have  satis- 
factory evidence  that  the  executor  or  administrator  has  proceed- 
ed with  reasonable  diligence  in  converting  the  personal  property 
of  the  deceased  into  money,  and  applying  the  same  to  the  payment 
of  debts. 

The  surrogate  must  not  only  acquire  jurisdiction  of  the  subject 
matter  by  the  presentation  of  'the  petition  and  account,  but  he 
must  also  acquire  jurisdiction  of  the  persons  of  those  whose  rights 
are  to  be  affected  by  the  sale,  in  order  to  render  his  subsequent 
proceedings  valid.  This  is  done  by  the  service  of  the  order  to 
show  cause  on  the  parties,  and  in  the  manner  prescribed  by  the 
statute.     {Sheldon  v.  Wright,  1  Seld.  513.     Bloom  v.  Burdick, 

1  Hill,  139.     Corwin  v.  Merritt,  3  Barb.  8.  C.  R.  341.) 

As  the  statute  contemplates  that  the  claims  against  the  estate 
should  be  exhibited,  and  either  rejected  or  established  before  the 
surrogate,  on  the  day  of  showing  cause,  and  that  debts  so  estab- 
lished shall  not  be  again  controverted,  unless  upon  newly  discov- 
ered evidence,  and  upon  due  notice  given  to  the  claimant,  it  would 
seem,  on  principle,  that  the  order  should  require  all  persons  hav- 
ing claims  against  the  estate,  to  exhibit  and  prove  them  before 
the  surrogate  on  the  same  day.  Without  such  investigation,  it 
is  impossible  for  the  surrogate  to  decide,  understandingly,  upon 
the  necessity  of  a  sale,  and  to  satisfy  the  requirements  of  the 
statute.  This  notice  will  not,  however,  supersede  the  necessity 
of  the  notice  required  by  the  40th  section,  after  the  sale 
and  the  proceeds  thereof  have  been  brought  into  court,     (See 

2  R.  8.  102,  §  13.    Id.  107,  tt  40,  41,  42.     Appendix,  Nos.  87, 
88,  89.) 

The  mode  of  serving  the  order  is  prescribed  by  the  act.  It 
must  be  published,  for  four  weeks,  in  a  newspaper  printed  in  the 
county,  and  a  copy  served,  personally,  on  every  person  in  the  oc- 
cupation of  the  premises,  of  which  a  sale  is  desired,  wherever  the 
same  may  be  situated,  and  on  the  widow  and  heirs,  and  devisees  of 
the  deceased,  residing  in  the  county  of  the  surrogate,  at  least  four- 
teen days  before  the  day  therein  appointed  for  showing  cause. 
(2  R.  8.  10,  §  6.) 

The  widow,  however,  after  her  dower  has  been  assigned,  is  not 


SALE  OF  REAL  ESTATE.  313 

a  necessary  party.  By  the  assignment  of  her  dower,  the  seisin 
of  the  heir  is  defeated  ab  initio,  and  the  latter  is  not  afterwards 
considered  as  having  been  seised.  The  widow,  after  the  assign- 
ment, not  holding  under  the  heir,  has  no  right  to  appear  before 
the  surrogate  to  show  cause  why  the  lands  of  which  her  husband 
died  seised,  should  not  be  sold  for  the  payment  of  his  debts  ;  the 
statute  giving  such  right  only  to  heirs  and  devisees,  and  persons 
claiming  under  them.  And  an  order  of  the  surrogate,  directing  a 
sale  of  the  land  assigned  to  the  widow  for  her  dower  would  be 
void,  so  far  as  it  related  to  such  land.  {Lawrence  v.  Brown, 
1  Seld.  394.) 

If  such  personal  service  cannot  be  made,  or  if  such  widow,  heirs 
or  devisees  do  not  reside  in  such  county,  but  reside  in  the  state, 
then  a  copy  of  such  order  may  be  served  personally,  forty  days  be- 
fore the  day  of  showing  cause,  or  by  publishing  the  same  once  in 
each  week,  for  four  weeks  in  succession,  in  the  state  paper.  If 
such  heirs  or  devisees  do  not  reside  within  this  state,  or  cannot  be 
found  therein,  the  order  must  be  published  once  in  each  week,  for 
six  weeks  successively,  in  the  state  paper ;  or  a  copy  thereof  may 
be  personally  served  on  them,  at  least  forty  days  before  the  time 
appointed  therein  for  showing  cause.  (2  R.  S.  101,  §  7.)  If  any 
of  the  heirs  or  devisees  are  minors,  the  order  must  be  served  on 
their  general  guardian,  or  guardian  ad  litem,  as  the  case  may  be. 
It  is  this  service  of  the  order,  either  personally  or  by  publication, 
which  gives  to  the  surrogate  jurisdiction  of  the  persons  interested 
in  the  land  sought  to  be  sold.  (Bloom  v.  Burdick,  1  Hill.  139.) 
The  act  for  the  protection  of  purchasers  of  real  estate  upon  sales  by 
order  of  the  surrogate,  passed  March  23, 1850,  (L.  of  1850,  p.  117,) 
does  not  dispense  with  any  requirement  calculated  to  appraise  the 
heirs  or  devisees  of  the  pendency  of  the  proceedings.  By  requir- 
ing the  order  to  be  treated  as  if  made  by  a  court  of  original  gen- 
eral jurisdiction,  it  shifts  the  burden  of  proof  from  the  person 
claiming  under  the  sale  to  the  party  who  attacks  its  regularity. 
But  if  the  jurisdictional  facts  be  disproved,  as,  for  instance,  that 
no  notice  was  served  or  published,  as  required  by  law,  though  the 
purchaser  acted  in  good  faith,  the  sale  will  be  invalid.  (Bloom  v. 
Burdick,  supra,  and  cases  before  cited.) 

At  the  time  and  place  appointed  in  the  order,  and  at  such  other 

40 


314  8ALE  OF  REAL  ESTATE. 

times  and  places  as  the  hearing  shall  be  adjourned  to,  the  surro- 
gate, upon  due  proof  of  the  service  and  publication  of  the  order,  as 
required  by  law,  should  proceed  to  hear  and  examine  the  allega- 
tions and  proofs  of  the  executors  or  administrators  applying  for 
such  authority,  and  of  all  persons  interested  in  the  estate,  who 
shall  think  proper  to  oppose  the  application.     (2  R.  S.  101,  §  8.) 

In  this  stage  of  the  proceedings  the  executors  or  administrators 
should  render  a  full  account  of  their  administration  of  the  per- 
sonal estate,  unless  they  shall  have  before  rendered  and  settled 
their  account  under  the  preceding  title  of  the  revised  statutes. 
The  surrogate  is  restrained  from  making  an  order  affecting  the 
real  estate  of  the  deceased,  unless  he  is  satisfied  not  only  that  the 
personal  estate  of  the  deceased  is  insufficient  for  the  payment  of 
the  debts,  but  also  that  the  executor  or  administrator  has  proceed- 
ed with  reasonable  diligence  in  converting  the  personal  property 
of  the  deceased  into  money,  and  applying  the  same  to  the  pay- 
ment of  debts.  (2  R.  S.  102,  §  14  as  modified  by  L.  of  1837, 
ch.  460,  §  41.  3  R.  S.  189,  190,  5th  ed.  Moore  v.  Moore,  14 
Barb.  27.)  He  must  be  satisfied  that  the  debts,  for  the  purpose 
of  satisfying  which  the  application  is  made,  are  justly  due  and 
owing,  and  that  they  are  not  secured  by  judgment  or  mortgage 
upon,  or  expressly  charged  on,  the  real  estate  of  the  deceased  ; 
or  if  they  be  secured  by  a  mortgage  or  a  charge  on  a  portion  of 
the  estate,  then  that  the  remedies  of  the  creditor,  by  virtue  of  such 
mortgage  or  charge,  have  been  exhausted.  (Id.  §  14.)  As  every 
sale  and  conveyance  made  pursuant  to  these  statutes  is  recpuired 
to  be  subject  to  all  charges  by  judgment,  mortgage  or  otherwise, 
upon  the  lands  so  sold,  existing  at  the  time  of  the  death  of  the 
testator  or  intestate,  it  was  necessary  that  the  creditor  holding 
such  jugdment  or  incumbrance  should  not,  by  virtue  of  such 
debt  so  charged,  be  an  applicant  for  the  sale  of  the  lands  on  which 
his  debt  is  a  lien.     (2  R.  S.  105,  §  32.) 

An  order  to  sell  the  real  estate  of  the  deceased  for  the  payment 
of  debts  is  a  substitute  for  an  action  at  law,  against  the  heirs  or 
devisees,  and  is  in  fact  a  bar  to  such  action,  as  far  as  relates  to 
the  lands  embraced  in  the  order.  (M  109,  §  53.)  It  presup- 
poses a  settlement  of  the  accounts  of  the  executors  or  adminis- 
trators in  relation  to  the  personal  assets,  because  the  heirs  or  de- 


SALE  OF  REAL  ESTATE.  315 

visees  are  not  liable  for  any  debt  of  the  deceased,  unless  it  shall 
appear  that  the  personal  assets  of  the  deceased  were  not  sufficient 
to  discharge  them,  and  after  due  proceedings  in  the  proper  surro- 
gate's court,  and  at  law,  the  creditor  has  been  unable  to  collect 
such  debt,  or  some  part  thereof,  from  the  personal  representatives 
of  the  deceased,  or  from  his  next  of  kin  or  legatees.  (2  R.  S. 
452,  §§  32,  33.)  And  it  is  incumbent  on  the  creditor  seeking 
to  charge  any  heirs  to  show  the  facts  and  circumstances  tthus  re- 
quired, to  render  them  liable.     (2  R.  S.  453,  §  36.) 

The  statement  of  the  accounts  should  be  as  full  and  ample  as 
is  required  on  rendering  a  final  account,  and  should  be  accompa- 
nied with  an  account  current.  It  should  be  sworn  to,  and  sup- 
ported by  vouchers' in  the  same  manner  as  in  analogous  proceedings 
in  courts  of  equity.  (Morris  v.  Mowat,  4  Paige,  143.)  The 
surrogate  is  invested  with  ample  power  to  ascertain  the  truth. 
In  addition  to  such  testimony  as  is  admissible  at  common  law,  the 
executors  or  administrators  may  be  examined  on  oath,  and  wit- 
nesses may  be  produced  and  examined  by  either  party.  Process 
may  be  issued  to  compel  their  attendance  and  testimony  in  the 
same  manner  and  with  the  like  effect  as  in  cases  of  proving  wills 
before  the  surrogate.  (2  R.  S.  101,  §  9.)  At  common  law  and 
in  equity  a  judgment  against  executors  or  administrators  was  not 
evidence  against  the  heir,  there  being  no  privity  between  the  per- 
sonal representatives  and  the  heirs.  (Ferguson  v.  Broom,  1  Bradf. 
11.  Baker  v.  Kingsland,  10  Paige,  366.)  Of  course,  upon  com- 
mon law  principles,  such  judgment  would  be  no  evidence  before 
the  surrogate  of  a  debt  for  which  he  could  legally  order  a  sale  of 
the  real  estate  of  the  deceased.  The  act  of  1837,  ch.  460,  §  72, 
as  modified  by  the  act  of  1843,  ch.  172,  permits  the  debt  for  which 
the  judgment  or  decree  was  obtained,  notwithstanding  the  new 
form  it  has  assumed,  to  remain  a  debt  against  the  estate  of  the 
deceased  to  the  same  extent  as  before,  and  to  be  established  in  the 
same  manner  as  if  no  such  judgment  or  decree  had  been  obtained  ; 
and  if  such  judgment  or  decree  was  obtained  upon  a  trial  or 
hearing  upon  the  merits,  it  makes  the  same  pri?na  facie  evidence 
of  such  debt  before  the  surrogate.  It  must  be  proved,  how- 
ever, in  a  legal  manner  by  an  exemplification ;  a  mere  copy  of  the 
docket   is  not  sufficient.     (Baker  v.   Kingsland,  supra.)     The 


31(5  SALE  OF  REAL  ESTATE. 

costs  awarded  against  the  executor  are  not  a  charge  against 
the  heirs  for  which  the  real  estate  can  be  sold.  {Sanford  v.  Gran- 
ger, 12  Barb.  392.) 

As  the  code  of  procedure  does  not  relate  to  the  practice  in  sur- 
rogates' courts,  the  rules  with  respect  to  the  competency  and 
credit  of  witnesses  and  other  testimony,  are  those  which  formerly 
governed  other  courts,  before  the  code,  except  where  the  legisla- 
ture have  expressly  changed  the  rule,  as  we  have  seen  they  have 
with  respect  to  the  executors  or  administrators,  and  judgments 
against  them  for  a  debt  of  the  testator  or  intestate,  obtained  after 
a  trial  on  the  merits. 

The  surrogate's  court  is  not  well  adapted  to  the  trial  of  disputed 
facts.  No  court  where  the  judge  must  act  in  the  five-fold  capacity 
of  judge,  jury,  clerk,  master  and  examiner,  can  reach  the  same 
satisfactory  result  on  a  controverted  question  as  is  generally  ob- 
tained by  a  trial  conducted  according  to  the  course  of  the  common 
law.  This  was  wisely  foreseen  by  the  legislature,  and  hence  tho 
provision  that  where,  upon  the  hearing,  a  question  of  fact  shall 
arise,  which  in  the  opinion  of  the  surrogate  cannot  be  satisfactorily 
determined  without  a  trial  by  jury,  he  is  authorized  to  award  a  feign- 
ed issue,  to  be  made  up  in  such  form  as  to  present  the  question  in 
dispute,  and  to  order  the  same  to  be  tried  at  the  next  circuit 
court  to  be  held  in  such  county.  New  trials  may  be  granted  by 
the  supreme  court  as  in  personal  actions  pending  in  that  court, 
and  the  final  determination  of  such  issue  is  made  conclusive  as  to 
the  facts  therein  controverted,  in  the  proceedings  before  the  sur- 
rogate. The  costs  of  the  failing  party  are  to  be  paid  on  the  order 
of  the  surrogate,  and  the  payment  is  to  be  enforced  by  him  in  the 
same  manner  as  other  orders  and  decrees.     (2  R.  S.  102,  §§  11, 12.) 

The  mode  of  making  up  the  feigned  issue,  and  the  proceedings 
therein,  belong  to  treatises  on  the  practice  of  the  supreme  court. 
The  abolition  of  feigned  issues  by  the  code,  §  72,  has  no  reference 
to  this  question,  or  to  the  practice  in  surrogates'  courts. 

If  a  creditor  makes  out  a  prima  facie  case  of  indebtedness  of 
the  deceased  in  his  lifetime,  there  are  two  classes  of  persons  who 
have  a  right  to  rebut  that  evidence  :  (1.)  The  heirs  and  devisees 
have  a  direct  interest  in  the  question  ;  and  to  remove  all  doubt  as 
to  their  right  to  contest  the  validity  of  the  claims  presented,  it  is 


SALE  OF  REAL  ESTATE.  317 

expressly  enacted  that  it  shall  be  competent  for  cither  one  of  the 
heirs  or  devisees  of  the  land  in  question,  and  for  any  person 
claiming  under  them,  to  shew  that  the  executors  or  administrators 
have  not  proceeded  with  reasonable  diligence  in  converting  the 
personal  property  of  the  deceased  into  money  and  applying  the 
same  to  the  paymeut  of  debts  ;  to  contest  the  legality  and  validity 
of  any  debts,  demands  or  claims  which  may  be  represented  as  ex- 
isting against  the  testator  or  intestate  ;  and  to  set  up  the  statute  of 
limitations  as  a  bar  to  such  claims.  The  admission  of  any  such 
claim  so  barred,  by  any  executor  or  administrator,  shall  not  be 
deemed  to  revive  the  same,  so  as  in  any  way  to  affect  the  real 
estate  of  the  deceased.  (2  R.  >S.  100,  §  10,  as  amended  by  §  72 
of  the  act  of  1837,  ch.  4G0,  and  L.  of  1843,  ch.  172.  Skidmore 
v.  Romain,  2  Bradf  122.  Ferguson,  v.  Broom,  1  Bradf.  10. 
Renwick  v.  Renwick,  1  id.  234.  Wilcox  v.  Smith,  26  Barb. 
S.  C.  R.  316.) 

An  equitable  claim  may  be  set  up  against  the  estate  of  the  de- 
ceased in  cases  of  this  kind,  and  an  equitable  defense  may  be  made 
not  only  to  such  equitable  claim,  but  also  to  a  legal  claim.  [Id. 
and  Matter  of  Renwick,  2  Bradf.  80.) 

(2.)  Any  other  creditor  of  the  deceased  has  a  right  to  appear 
and  contest  the  validity  of  any  other  claim.  He  has  such  an 
interest  in  the  fund  as  to  entitle  him  to  the  aid  of  the  court  in  pro- 
tecting it.  {Mooers  v.  White,  6  John.  Ch.  R.  360.)  The  pro- 
ceeding before  the  surrogate  to  establish  claims  against  the  estate, 
is  analogous  to  that  under  the  common  decree  in  an  administration 
suit.  In  the  latter  case  it  was  held  by  the  master  of  the  rolls,  in 
tShewen  v .  Vanderhorst,  (1  Russell  and  My  hie,  347,)  that  it  was 
competent  for  any  of  the  parties  interested  in  the  fund  to  set  up 
the  statute  of  limitations  in  bar  of  the  claim  of  a  creditor  seeking  to 
establish  his  debt  before  the  master,  although  the  executors  refused 
to  interfere.  This  decision  was  affirmed  on  appeal  by  Lord 
Brougham,  who  remarked,  that  without  saying  how  far  the  master 
himself  might  be  entitled  to  set  up  the  objection,  he  could  see  no 
reason  why  it  might  not  be  taken  by  a  creditor,  or  a  volunteer,  as 
well  as  by  the  personal  representative.  (Id.  Moore  v.  Moore, 
6  J.  Ch.  R.  360.      Wilcox  v.  Smith,  26  Barb.  316.) 

If  the  executor  or  administrator  has  a  claim  in  his  own  favor 


318  SALE  OF  REAL  ESTATE. 

against  the  estate,  it  should  be  presented  at  this  time  for  allow- 
ance. He  has,  by  law,  no  right  to  retain  for  his  own  debt,  nor  is 
his  claim  entitled  to  any  preference  over  that  of  other  creditors. 
(2  R.  S.  88,  §  33.  Treat  v.  Fortune,  2  Bradf.  116.)  lie  must 
make  the  same  proof  of  the  existence  and  validity  of  his  claim  as 
is  required  of  other  creditors  ;  and  the  statute  of  limitations,  and 
any  other  valid  defense,  may  in  like  manner  be  interposed  against 
it.  (  Williams  v.  Purdy,  6  Paige,  166.  Rogers  v.  Rogers, 
3  Wend.  503.)  Like  any  other  creditor,  he  may  remove  the  bar 
created  by  the  statute  of  limitations,  by  showing  a  recognition  of 
the  debt  by  the  deceased  in  his  lifetime,  within  the  period  of  limit- 
ation, accompanied  with  a  promise  to  pay  it ;  or,  indeed,  by  such 
proof  as  would  in  a  court  of  law  or  equity  take  the  debt  out  of  the 
statute  of  limitations. 

A  testamentary  provision  made  by  a  testator  for  the  payment  of 
debts  generally,  does  not  revive  a  debt  upon  which  the  statute  of 
limitations  had  taken  effect  before  the  testator's  death.  (Roosevelt 
v.  Mark,  6  /.  Oh.  R.  295.) 

The  testimony  when  taken  by  the  surrogate  in  relation  to  any 
claim  against  the  estate  should  be  in  writing,  subscribed  by  the 
witness  or  party  examined,  and  filed.  This  seems  to  be  necessary 
in  order  that  it  may  be  returned  on  an  appeal,  and  thus  enable  the 
appellate  tribunal  to  review  the  decision  of  the  surrogate.  (Fitch 
v.  Witbeck,  2  Barb.  Ch.  R.  161.) 

The  admissions  of  an  executor  or  administrator  of  the  validity  of 
a  debt  against  the  estate,  or  even  a  judgment  against  the  executors 
or  administrators  by  confession  or  by  default,  is  not  evidence  of  the 
debt ;  nor  is  the  latter,  after  a  trial  on  the  merits,  only  evidence 
prima  facie,  and  that  by  statute,  as  has  .already  been  shown. 
Every  creditor  of  the  estate,  including  the  executor  or  administra- 
tor, coming  to  establish  his  claims  against  the  estate,  must  make 
the  usual  oath  that  the  debt  is  justly  due  to  him  from  the  estate, 
after  allowing  all  payments  and  all  proper  discounts  and  offsets. 
And  he  must  also  produce  to  the  surrogate  legal  evidence  of  the 
existence  of  the  debt,  unless  the  same  is  admitted  by  those  who 
are  interested  in  the  estate.     (  Williams  v.  Purdy,  6  Paige,  166.) 

The  demands  which   the  surrogate  shall,  upon  such  hearing, 


SALE  OF  REAL  ESTATE.  319 

adjudge  valid  and  subsisting  against  the  estate  of  the  deceased ; 
or  which  shall  have  been  determined  to  be  valid,  on  the  trial  of 
such  issue,  or  which  shall  have  been  recovered  against  the  exec- 
utors or  administrators  by  the  judgment  of  a  court  of  law,  upon 
a  trial  on  the  merits,  are  required  to  be  entered  in  the  book  of  his 
proceedings,  fully  and  at  large,  and  the  vouchers  supporting  the 
same  to  be  filed  in  his  office.  (2  R  S.  102,  §  13.)  Every  order 
allowing  or  disallowing  a  claim  against  the  estate  is  the  subject 
of  an  appeal,  to  be  taken  within  thirty  days.  (2  R.  S.  G10,  §  107. 
Bronson  v.  Ward,  3  Paige,  189.)  The  order,  therefore,  should 
be  entered  in  the  book  for  sales  of  real  estate,  with  a  schedule 
subjoined  containing  a  list  of  the  claims  allowed,  as  well  as  a  list 
of  those  rejected.  (See  Appendix,  No.  89.)  If  the  entry  was 
neglected  at  the  time,  it  may  be  made  subsequently  nunc  pro  tunc. 
[Farrington  v.  King,  1  Bradf.  182.) 

After  being  satisfied  that  the  executors  or  administrators  have 
fully  complied  with  the  provisions  of  the  act  relative  to  the  admin- 
istration of  the  personal  assets,  and  to  the  service  of  the  order  to 
shew  cause,  on  all  who  are  interested  and  entitled  to  such  service, 
in  the  manner  required  by  law  ;  that  the  debts,  for  the  purpose  of 
which  the  application  is  made,  are  justly  due  and  owing,  and  that 
they  are  not  secured  by  judgment  or  mortgage  upon,  or  expressly 
charged  on  the  real  estate  of  the  deceased ;  or.  if  such  debts  are 
secured  by  a  mortgage  or  charge  on  a  portion  of  such  estate,  then, 
that  the  remedies  of  the  creditor,  by  virtue  of  such  mortgage,  have 
been  exhausted  ;  that  the  personal  estate  of  the  deceased  is  insuffi- 
cient for  the  payment  of  such  debts,  and  that  the  executor  or 
administrator  has  proceeded  with  reasonable  diligence  in  convert- 
ing the  personal  property  of  the  deceased  into  money,  and  applying 
the  same  to  the  payment  of  debts.  (2  R.  /S.  102,  §  14,  as  modified 
by  the  act  of  1837,  ch.  460,  §  41.  3  R.  8.  189,  5th  ed.)  The  sur- 
rogate is  required  to  ascertain,  in  the  first  place,  whether  sufficient 
moneys  for  tho  payment  of  the  debts  can  be  raised  by  mortgaging 
or  leasing  the  real  property  of  the  deceased,  or  any  part  thereof. 
(2  R.  S.  102,  §  15.)  This  inquiry  is  conducted  in  a  summary 
way.  It  is  proper  that  the  executors  or  administrators  should 
state,  in  their  petition  for  the  aid  of  the  surrogate  in  the  premises, 


320  SALE  OF  REAL  ESTATE. 

the  mode  of  disposition  of  the  estate  which  they  deem  the  best  for 
the  interest  of  all  concerned.     (Appendix,  No.  90.) 

Before  any  order  is  granted  by  the  surrogate  for  mortgaging, 
leasing,  or  selling  the  estate,  or  any  part  thereof,  the  surrogate 
must  require  adequate  security  from  the  executors  or  administra- 
tors. In  case  the  application  is  for  mortgaging  or  leasing  any  real 
estate,  the  security  must  be  in  a  bond  to  the  people  of  this  state, 
with  sufficient  sureties,  at  least  two,  to  be  approved  by  the  surro- 
gate, in  a  penalty  double  the  amount  to  be  raised  by  such  mort- 
gage or  lease,  conditioned  for  the  faithful  application  of  the  moneys 
arising  from  such  mortgage  or  lease  to  the  payment  of  the  debts 
established  before  the  surrogate  on  granting  the  order,  and 
for  the  accounting  for  such  moneys  whenever  required  by  such 
surrogate,  or  by  any  court  of  competent  authority.  If  the  order 
applied  for  is  to  sell  real  estate,  the  surrogate  must  require  a  bond 
in  like  manner,  and  with  sureties  as  above  directed,  in  a  penalty 
double  the  value  of  the  real  estate  ordered  to  be  sold,  conditioned 
that  such  executors  or  administrators  will  pay  all  moneys  arising 
from  such  sale,  after  deducting  the  expenses  thereof,  and  will  de- 
liver all  securities  taken  by  them  on  such  sale,  to  the  surrogate, 
within  twenty  days  after  the  same  shall  have  been  received  and 
taken  by  them.  (2  R.  S.  103,  §§  21,  22.)  See  Appendix  for  form, 
No.  93. 

In  case  of  tho  refusal  or  neglect  of  the  executors  or  administra- 
tors applying  for  such  order,  to  execute,  within  a  reasonable  time, 
any  bond  required  as  above,  the  surrogate  is  required  to  appoint  a 
disinterested  freeholder  to  execute  such  mortgage  or  lease,  or  to 
make  such  sales,  who  are  to  execute  a  bond,  similar  in  all  respects 
to  that  required  of  the  executors  or  administrators,  in  whose  place 
he  is  appointed.  (Id.  §  23.)  In  making  this  appointment,  the  sur- 
rogate should  give  preference  to  any  person  nominated  by  the 
creditors  of  the  deceased.     (Id.) 

The  person  so  appointed,  on  executing  and  filing  the  bond,  is 
vested  with  all  the  powers  and  authority,  and  liable  to  all  the  duties 
appertaining  to  executors  or  administrators  in  relation  to  the 
mortgaging,  leasing  or  sale  of  the  real  estate  of  tho  deceased. 
{Id.  24.) 

These  bonds,  when  executed,  it  will  be  remembered  are  to  be 


SALE  OF  REAL  ESTATE.  321 

proved  or  acknowledged  in  the  manner  in  which  deeds  arc  to  bo 
proved  or  acknowledged,  in  order  to  be  recorded. 
(See  Appendix,  Nos.  106,  107,  108.) 

Section  II. 

Of  granting  an  order  for  mortgaging,  leasing  or  selling,  the 
real  estate  of  the  deceased,  and  the  proceedings  tliercon  to  the 
consummation  thereof 

After  the  executors  or  administrators,  or  the  person  designated 
to  act  in  their  default,  have  complied  with  all  the  requirements  of 
the  act,  it  is  the  duty  of  the  surrogate  to  make  an  order  for  mort- 
gaging, leasing,  or  selling  the  real  estate  of  the  deceased. 

The  provision,  with  respect  to  raising  money  to  pay  debts  by  a 
mortgage  or  lease  of  the  lands  of  the  deceased,  was  first  given  by 
the  act  of  1810,  page  10.  {Jackson  v.  Irwin,  10  Wend.  448,  per 
Savage,  Ch.  J.)  It  was  restricted  to  cases  where  there  were  in- 
fants interested  in  the  real  estate;  and  the  lease  was  not  to  be  for 
a  longer  time  than  until  the  youngest  person  interested  in  the  es- 
tate should  become  twenty-one  years  of  age.  This  provision  was 
contained  in  the  revised  law  of  1813,  (vol.  1,  453,  §  18,)  and  the 
authority  to  direct  a  lease  or  mortgage,  was  made  dependent  on 
the  opinion  of  the  court  of  probate  or  surrogate,  that  such  lease  or 
mortgage  would  be  advantageous  to  the  owners  of  the  estate.  The 
revised  statutes  do  not  contain  a  limitation  of  the  power  to  raise 
money  by  lease  or  mortgage,  to  cases  where  infants  are  interested 
in  the  estate,  but  they  restrict  the  duration  of  the  lease,  in  case 
there  are  infants,  to  the  period  when  the  youngest  infant  becomes 
twenty-one  years  old ;  thus  retaining,  in  this  respect,  this  feature 
of  the  original  act  of  1810.  It  is  presumed  that  money  may  be 
raised  by  lease  or  mortgage,  under  the  order  of  the  surrogate,  as 
well  where  all  the  parties  interested  are  adults,  as  where  the 
whole,  or  any  part  of  them,  are  infants. 

There  may  be  cases  where  it  would  be  for  the  interest  of  the 
parties  to  raise  the  money  in  this  way.  If  the  sum  to  be  raised  is 
not  large,  and  the  heirs  are  of  age,  or  nearly  so,  it  would  probably 
diminish  the  expense,  and  be  most  beneficial,  to  raise  the  money 
by  mortgage  or  lease.     Such  security  is  equally  valid  as  if  made 

41 


322  SALE  OF  REAL  ESTATE. 

by  the  testator  or  intestate,  in  his  lifetime ;  and  the  executors  or 
administrators  are  not  required  to  make  any  report  of  the  terms 
of  the  lease  or  mortgage,  but  may  execute  the  same  without  any 
further  order  of  the  surrogate.  Nor  are  they  required  to  adver- 
tise the  premises,  but  may  make  a  private  agreement  for  such 
mortgage  or  lease.  The  money  so  raised  is  not  required  to  be 
brought  into  court.  Nor  is  the  surrogate  to  make  any  order  for  a 
distribution  of  it ;  but  it  is  to  be  received  by  the  executors  or  ad- 
ministrators, and  applied  by  them  towards  the  satisfaction  of  the 
debts,  established  before  the  surrogate  on  the  granting  of  the  or- 
der. (2  R.  S.  103,  §§  16,  17,  21.)  The  surrogate  has  no  per 
centage  on  the  distribution  of  moneys  arising  from  a  mortgage  or 
lease  given  in  pursuance  of  the  order.  (2  R.  S.  642.)  The  fund 
thus  raised  is  distributable  by  the  executors  or  administrators,  and 
they  are  liable  to  be  cited  and  compelled  by  the  surrogate  to  pay 
the  debts  of  the  deceased,  established  at  the  time  the  order  was 
made,  and  to  account  for  the  proceeds  of  the  said  lease  or  mort- 
gage, in  the  same  manner  as  if  the  real  estate  thus  leased  or 
mortgaged  had  been  originally  personal  estate.  Obedience  to 
such  order  may  be  enforced  by  imprisonment,  as  on  a  final  account, 
or  by  a  suit  at  law  on  the  bond.     (2  R.  S.  106,  §  34.) 

The  legislature  which  enacted  the  revised  statutes,  in  1830,  in- 
tended, no  doubt,  to  give  a  preference  to  a  lease  or  mortgage  over 
a  sale,  as  a  means  of  raising  the  necessary  funds.  At  that  time, 
the  remedy  to  enforce  the  collection  of  rents  was  by  distress. 
Since  then  the  constitution  of  1846  has  prohibited  any  lease  or 
grant  of  agricultural  land  for  a  longer  period  than  twelve  years, 
where  any  rent  is  reserved.  {Const.  Art.  1,  §  14.)  And  the 
legislature  has  abolished  distresses  for  rent.  It  is  less  advanta- 
geous now  to  raise  money  by  a  lease,  than  it  was  when  the  act 
was  originally  framed.  And  it  is  a  proceeding  that  is  very  rarely 
resorted  to. 

If  it  appears  to  the  surrogate,  as  it  generally  will,  that  the 
moneys  required  cannot  be  raised  by  mortgage  or  lease  advanta- 
geously to  the  estate,  it  is  then  the  duty  of  the  surrogate,  from 
time  to  time,  to  order  a  sale  of  so  much  of  the  real  estate,  whereof 
the  testator  or  intestate  died  seised,  as  will  be  sufficient  to  pay  the 


SALE  OF  REAL  ESTATE.  323 

debts,  which  the  surrogate  shall  have  entered  in  his  book  as 
valid  and  subsisting.  (2  R.  S.  103,  §  18.)  The  debts  thus  es- 
tablished are  in  the  nature  of  a  judgment. 

The  sale,  under  the  order  of  the  court,  can  only  affect  the  title 
which  the  deceased  had  at  the  time  of  his  death.  The  purchaser 
takes  it  subject  to  all  prior  incumbrances  and  liens.  The  surro- 
gate has  no  power  to  settle  a  question  of  conflicting  titles,  though 
he  may  suspend  the  execution  of  the  order  of  sale  until  those  dis- 
putes are  adjusted  by  the  proper  tribunal ;  or,  if  those  interested 
in  the  estate  prefer  it,  he  may  direct  the  sale  to  go  on,  subject  to 
all  incumbrances.     (Hewitt  v.  Hewitt,  3  Bradf.  265.) 

The  order,  when  drawn  up,  should  be  entered  in  the  book  of 
sales  of  real  estate.  It  should  recite  enough  of  the  proceedings  to 
give  the  court  jurisdiction,  both  of  the  subject  matter  and  of  the 
persons  of  the  heirs  and  devisees,  and,  in  general,  to  show  a  com- 
pliance on  the  part  of  the  executors  or  administrators,  with  the 
requirements  of  the  statute.  (Atkins  v.  Kinman,  20  Wend.  250, 
per  Cotven,  J.  and  see  Appendix  for  form  of  the  order.) 

Since  the  passing  of  the  act  of  1850,  for  the  protection  of  purchas- 
ers of  real  estate  upon  sales  by  order  of  the  surrogate,  (L.  o/"1850, 
p.  117,)  the  title  of  purchasers  in  good  faith  cannot  be  impeached 
by  reason  of  any  omission,  error,  defect,  or  irregularity  in  the  pro- 
ceedings before  the  surrogate,  or  by  an  allegation  of  want  of 
jurisdiction  on  the  part  of  the  surrogate,  except  in  the  man- 
ner, and  for  the  causes,  that  the  same  could  be  impeached  or 
invalidated  in  case  such  sale  had  been  made  pursuant  to  the  order 
of  a  court  of  original  general  jurisdiction.  These  orders  are, 
therefore,  substantially  placed  on  the  same  footing  with  orders  for 
the  sale  of  real  estate,  in  analogous  cases,  by  the  late  court  of 
chancery  or  the  supreme  court.  Nevertheless,  it  is  desirable  that 
they  should  contain,  in  brief  terms,  a  recital  of  the  proceedings 
which  led  to  the  granting  of  them. 

There  are  some  statutory  requirements  with  regard  to  the  con- 
tents of  the  order,  and  the  direction  which  it  shall  contain,  bor- 
rowed from  the  practice  of  the  courts  of  equity.  Thus,  if  the  real 
estate  consists  of  houses  or  lots,  or  of  a  farm,  so  situated  that  a 
part  thereof  cannot  be  sold  without  manifest  prejudice  to  the  heirs 
or  devisees,  then  the  whole,  or  a  part  thereof,  although  more  than 


324  SALE  OF  REAL   ESTATE. 

may  be  necessary  to  pay  such  debts,  may  be  ordered  to  be  sold ; 
and  if  a  sale  of  the  whole  real  estate  shall  appear  necessary  to 
pay  such  debts,  it  may  be  ordered  accordingly.  (2  R.  S.  103, 
§  19.     Jackson  v.  Irwin,  10  Wend.  441.) 

The  order  must,  in  all  cases,  specify  the  lands  to  be  sold,  and 
the  surrogate  may  direct  the  order  in  which  several  tracts,  lots 
or  pieces,  shall  be  sold.  If  it  appears  that  any  part  of  the  real 
estate  of  the  deceased  has  been  devised,  and  not  charged  in  such 
devise  with  the  payment  of  debts,  the  surrogate  is  required  to  or- 
der that  the  part  descended  to  heirs  shall  be  sold  before 
that  devised.  If  it  appears  that  any  lands,  devised  or  descended, 
have  been  sold  by  the  heirs  or  devisees,  then  the  lands  remaining 
in  their  hands  unsold,  shall  be  ordered  to  be  first  sold ;  and  in  no 
case  shall  land  devised,  expressly  charged  with  the  payment  of 
debts,  be  sold  under  any  order  of  a  surrogate.  {Id.  §  20.  Eddy 
v.  Travel",  6  Paige,  521.)  These  principles  are  the  same  as  those 
adopted  by  courts  of  equity  in  marshalling  securities  among  cred- 
itors, and  of  assets  amongst  parties  in  distribution.  (  Willard's 
Eq.  Juris.  337.     Id.  561.) 

Under  the  statute  of  1801  it  has  been  supposed  that  the  execu- 
tors or  administrators  might  sell  at  private  as  well  as  at  public 
sale.  They  must,  however,  have  sold  for  cash.  (Jackson  v.  Irvin, 
10  Wend.  446,  per  Savage,  Ch.  J.  Maples  v.  Howe,  3  Barb.  Ch. 
R.  611.)  The  present  statute,  however,  requires  the  sale  to  be 
in  the  county  where  the  lands  are  situated,  and  at  public  vendue, 
between  the  hour  of  nine  in  the  morning  and  the  setting  sun  of 
the  same  day.  (2  R.  S.  104,  §  26.)  And  the  sale  may  be  on  a 
credit,  not  exceeding  three  years,  for  not  more  than  three-fourths 
of  the  purchase  money,  as  shall  seem  best  calculated  to  produce 
the  highest  price,  and  as  shall  have  been  directed  by  the  surro- 
gate, or  shall  be  approved  by  him ;  the  moneys,  when  the  sale 
is  on  credit,  are  to  be  secured  by  a  bond  of  the  purchaser,  and  a 
mortgage  of  the  premises  sold.  (Id.  §  28.)  It  was  said  by  the 
chancellor,  in  Maples  v.  Howe,  supra,  that  when  the  creditors 
wish  to  have  the  property  sold  on  credit,  the  most  proper  course 
would  be  to  suggest  it  to  the  surrogate  at  the  time  of  making  the 
order,  so  that  he  might  inquire  into  the  situation  of  the  property, 
and  the  claims  of  the  various  creditors,  and  give  the  proper  direc- 


SALE  OF  REAL  ESTATE.  325 

tions.  Although  the  wishes  of  the  creditors  in  this  respect  should 
not  be  entirely  disregarded,  yet  it  is  believed  that  the  surrogate 
can,  against  their  recommendation,  authorize  a  credit  within  the 
limits  of  the  act,  if  he  believes  that  course  best  calculated  to  pro- 
duce the  highest  price.  This  order  ought  to  be  obtained  from  the 
surrogate  before  the  sale  is  made. 

Whenever  a  sale  is  ordered,  a  duly  authenticated  copy  of  the 
order  should  be  delivered  to  the  exequtors  or  administrators,  and 
it  then  becomes  their  duty  to  cause  the  premises  embraced  in  the 
order  to  be  sold  at  public  auction.  For  this  purpose  notice  of  the 
time  and  place  of  holding  the  sale  is  required  to  be  posted  for  six 
weeks  at  three  of  the  most  public  places  in  the  town  or  ward  where 
the  sale  shall  be  had  ;  and  to  be  published  in  a  newspaper,  if  there 
be  one  printed  in  the  same  county,  and  if  there  be  none,  then  in 
the  state  paper  for  six  weeks  successively.  The  lands  and  tene- 
ments must  be  described  in  the  notice  with  common  certainty,  by 
setting  forth  the  number  of  the  lots,  and  the  name  or  number  of 
the  township  or  towns  in  which  they  are  situated.  If  the  premises 
cannot  be  so  described,  they  must  be  described  in  some  other 
appropriate  manner,  and  in  all  cases  the  improvements  thereon,  if 
any,  must  be  stated.     (2  R.  S.  104,  §  25.) 

As  a  departure  from  the  requirements  of  the  statute  in  conduct- 
ing these  sales,  will  always  cast  a  cloud  over  the  title,  even  when 
it  does  not  invalidate  it,  a  strict  and  cautious  obedience  to  these 
directions  should  be  followed  by  the  executors  or  administrators. 

When  the  sale  is  made,  the  terms  of  it  should  be  reduced  to 
writing  and  be  subscribed  by  the  purchaser.  It  should  always  be 
a  condition  that  a  deed  is  not  to  be  given  until  an  order  of  confirm- 
ation shall  have  been  granted  by  the  surrogate. 

It  is  a  wise  principle  in  morals,  as  well  as  in  equity  jurispru- 
dence, that  a  man  standing  in  confidential  relations  to  others  should 
refrain  from  so  acting  that  his  self  interest  would  conflict  with  his 
integrity,.  The  law,  therefore,  prohibits  a  party  from  purchasing, 
on  his  own  account,  that  which  his  duty  or  trust  requires  him  to 
sell  on  account  of  another,  and  from  purchasing  on  account  of 
another  that  which  he  sells  on  his  own  account.  (  Willard's  Eq. 
Juris.  G05,  006,  and  cases  liter o  cited.)  The  statute  has  applied 
these  principles  to  the  sales  under  the  order  of  the  surrogate,  and 


326  SALE  OF  REAL  ESTATE. 

prohibited  the  executors  or  administrators,  and  the  guardian  of 
any  minor  heirs  of  the  deceased,  from  becoming  a  purchaser, 
directly  or  indirectly,  or  from  being  interested  in  the  purchase  of 
any  part  of  the  real  estate  so  sold.  All  sales  made  contrary  to 
the  provisions  of  that  section  of  the  act  are  declared  to  be  void ; 
but  an  exception  is  made  in  favor  of  a  purchase  by  a  guardian  for 
the  benefit  of  his  ward.     (2  R.  S.  105,  §  27.) 

The  sale  having  been  duly  made,  it  is  then  the  duty  of  the  ex- 
ecutors or  administrators,  or  other  person  by  whom  the  sale  was 
conducted,  to  make  a  return  of  their  proceedings,  upon  the  order 
of  sale,  to  the  surrogate  granting  the  same.  This  return  should 
be  in  writing  ;  and  should  set  forth  the  circumstances  attending 
the  sale,  and  the  facts  showing  a  compliance  with  the  statute,  and 
be  accompanied  with  affidavits  of  due  service  and  publication  of 
the  notice  of  sale.  The  return  should  be  verified  by  the  affidavit 
of  the  executors  or  administrators,  or  of  the  person  who  conducted 
the  sale.     (2  R.  S.  105,  §  29.) 

The  statute  evidently  contemplates  that  parties  may  appear 
before  the  surrogate  and  oppose  this  confirmation,  and  apply  to 
open  the  biddings.  It  has,  however,  made  no  provision  for  notice 
to  be  given  of  the  time  when  the  return  will  be  made.  If  no  one 
objects  to  the  confirmation,  and  the  proceedings  appear  to  have 
been  regularly  and  fairly  conducted,  the  surrogate  has  a  right  to 
assume  that  the  executors  or  administrators  represent  the  parties 
in  interest,  and  he  will  be  warranted  in  confirming  the  sale,  and 
directing  conveyances  to  be  executed.  But  the  heirs  may  desire 
to  be  heard  against  a  confirmation,  and  the  purchaser  against  the 
opening  of  the  biddings.  Perhaps  the  better  remedy  for  supply- 
in^  this  omission  is  that  suggested  by  the  chancellor  in  Delaplaine 
v.  Lawrence,  10  Paige,  604,  that  such  of  the  parties  as  wish  to 
be  heard  should  file  a  caveat  with  the  surrogate,  and  request  that 
he  might  be  notified  of  the  time  of  hearing.  This  is  analogous  to 
the  proceedings  before  masters  under  the  old  chancery  practice, 
Avhen  sales  were  conducted  by  them.  The  purchaser  was  entitled 
to  a  hearing  upon  the  question  whether  the  sale  should  be  set 
aside  or  confirmed.     {Id.) 

On  receiving  the  return,  the  surrogate  is  required  to  examine 
the   proceedings ;    and  for  this   purpose,  he   may  examine  the 


SALE  OF  REAL  ESTATE.  327 

executors  or  administrators,  or  any  other  person  on  oath  touching 
the  same.  If  he  is  of  opinion  the  proceedings  are  unfair,  or  that 
the  sum  bid  is  disproportionate  to  the  value,  and  that  a  sum  ex- 
ceeding such  bid,  at  least  ten  per  cent,  exclusive  of  the  expenses 
of  a  new  sale,  may  be  obtained,  he  is  required  to  vacate  the  sale 
and  direct  that  another  be  had.  The  subsequent  sale,  if  ordered, 
must  be  conducted  in  all  respects  like  that  on  the  first  order,  and 
be  had  under  the  like  notice.  {Id.  §  29.)  (For  forms  of  order  of 
sale,  report  and  order  of  confirmation,  see  Appendix,  Nos.  90, 
91,  92.) 

This  practice  of  opening  biddings  and  directing  a  re-sale  of  the 
premises,  is  borrowed  from  that  of  the  court  of  chancery,  and 
should  be  exercised  with  great  caution.  {Duncan  v.  Dodd, 
2  Paige,  99.)  A  suspicion  on  the  part  of  the  bidders  that  the  sale 
will  not  be  confirmed  and  that  the  premises  will  be  again  exposed 
to  sale,  tends  to  repress  competition,  and  to  dampen  the  ardor  of 
those  who  conduct  the  sale.  In  England  it  is  almost  a  matter  of 
course  to  open  the  biddings,  on  a  master's  sale,  before  the  con- 
firmation of  his  report,  upon  the  offer  of  a  reasonable  advance  on 
the  amount  bid,  and  the  payment  of  the  costs  and  expenses  of  the 
purchase.  As  a  general  rule,  an  advance  of  ten  per  cent  is  suf- 
ficent  to  authorize  a  re-sale  ;  but  the  biddings  will  not  be  opened 
when  the  amount  of  the  advance  is  less  than  forty  pounds  sterling. 
(4  Mad.  Ch.  R.  460.)  The  policy  of  the  English  practice  was 
strongly  questioned  by  Lord  Elden  in  Williams  v.  Attleborough, 
Turner's  Rep.  75,  and  it  has  been  adopted  in  this  state  only  in 
cases  where  the  reasons  for  the  equitable  interposition  of  the  court 
are  strong  and  powerful.  (Duncan  v.  Dodd,  supra,  and  cases 
there  cited.  3  John.  Ch.  R.  292.)  In  a  recent  case  in  the  court 
of  appeals,  it  was  held  that  to  authorize  the  vacating  of  the  sale, 
it  must  be  made  to  appear,  either  that  it  had  been  unfairly  con- 
ducted, or  that  the  sum  bid  was  disproportionate  to  the  value  of 
the  property,  and  that  at  least  ten  per  cent,  exclusive  of  the 
expenses  of  the  new  sale,  may  be  obtained  in  addition  to  the 
sum  bid.  Both  must  concur  ;  because,  if  the  sum  bid  is  not 
disproportionate  to  the  value,  the  sale  should  not  be  set  aside 
on  an  offer  of  ten  per  cent  more.     The  object  is  not  speculation, 


328  SALE  OF  REAL  ESTATE. 

but  to  obtain  the  fair  value  of  the  property.  (Kain  v.  Mastei'ton, 
2  Smith,  N.  Y.  Rep.  175.    Dalaplaine  v.  Lawrence,  3  Comst.  301.) 

If.  however,  it  appears  to  the  surrogate  that  the  sale  was 
legally  made  and  fairly  conducted,  and  that  the  sum  bid  was  not 
disproportionate  to  the  value  of  the  property  sold,  or,  if  dispropor- 
tionate, that  a  greater  sum  than  at  least  ten  per  cent,  exclusive  of 
the  expenses  of  a  new  sale,  cannot  be  obtained,  he  is  required  to 
make  an  order  confirming  the  sale,  and  directing  conveyances  to  be 
executed.    {Horton  v.  Horton,  2  Bradf.  200.     2  R.  S.  105,  §  30.) 

It  must  be  here  remembered  that  the  sales  and  conveyances  are 
subject  to  all  charges  by  judgment,  mortgage,  or  otherwise,  upon 
the  lands  so  sold,  existing  at  the  time  of  the  death  of  the  testator 
or  intestate.  {Id.  §  32.)  And  hence,  if  the  testator  charges  the 
payment  of  his  debts  on  his  real  estate,  by  his  last  will  and  testa- 
ment, the  surrogate  has  no  jurisdiction  to  order  a  sale  of  the 
lands  so  charged.  The  remedy  of  the  creditor  to  enforce  such 
charge  is  in  equity.  Hence,  too,  if  there  be  legacies  charged  upon 
the  real  estate,  the  purchaser  takes  his  title  subject  to  the  pay- 
ment thereof. 

With  respect  to  what  direction  in  a  will  constitutes  a  valid 
charge  upon  the  real  estate,  in  favor  of  creditors  or  legatees,  a 
few  words  only  can  be  added.  The  limits  of  this  treatise  will  not 
admit  of  a  full  discussion  of  it,  and  it  belongs  more  appropriately 
to  works  on  equity  jurisprudence,  and  the  doctrine  of  wills.  In 
general,  it  may  be  said,  that  the  personal  estate  is  the  primary 
fund  to  pay  both  debts  and  legacies,  and  that  a  mere  direction  in 
the  will  to  the  executors  to  pay  the  debts  of  the  testator,  or  the 
legacies,  is  not  sufficient  to  charge  the  real  estate.  (Lupton  v. 
Lupton,  2  J.  Ch.  R.  614,  624.)  There  must  be  some  other  lan- 
guage, in  the  absence  of  an  express  charge,  as  where  the  testator 
devises  his  estate,  "  after  payment  of  debts,"  or  "  his  debts  being 
first  paid,"  or  the  like.  (2  Story's  Eq.  Juris.  §  1246.  Willard's 
Eq.  Juris.  487  to  490.  Jarman  on  Wills,  ch.  46,  2  vol.  364,  et  seq. 
Perkins  ed.  and  the  cases  cited  and  notes.  Reynolds  v.  Reynolds, 
2  Smith,  259, 16  N.  Y.  Rep.)  The  usual  clause  in  a  will  devising 
and  bequeathing  the  residue  is  not  alone  sufficient  to  make  either 
the  debts  or  legacies  a  charge  upon  the  realty.  Nor  is  the  blend- 
ing of  the  real  and  personal  estate  in  one  devise  in  the  same 


SALE  OF  HEAL  ESTATE.  329 

clause  in  the  will.  [Reynolds  v.  Reynolds,  supra.)  In  all  the 
cases  where  the  lands  covered  by  a  residuary  devise  have  been 
held  chargeable,  there  has  been  something  besides  a  mere  bequest 
or  direction  to  pay  debts.  [See  Luptou  v.  Lupton,  supra,  and 
the  cases  before  cited.)  Such  was  the  case  in  Awbrey  v.  Mid- 
dleton,  2  Eq.  Ca.  Abr.  497.  Mirehouse  v  .Scaife,  2  Mylne  and 
Cr.  695,  and  Lewis  v.  Darling,  16  Howard's  U.  IS.  Rep.  1. 

But  the  sale  under  the  order  of  the  surrogate  extinguishes  all 
claim  for  dower  of  the  widow  of  the  testator  or  intestate.  (2  R.  *S*. 
105,  §  31.)  If  the  widow  of  any  former  owner  of  the  land  has  a 
claim  therein  for  dower,  it  remains  unaffected  by  the  sale,  and  her 
remedy  continues  against  the  land  as  before.  It  is  the  dower 
only  of  the  widow  of  the  testator  or  intestate  that  is  cut  off  by 
the  sale,  and  for  which  an  adequate  compensation  is  subsequently 
made.  But  if  the  dower  has  been  assigned  to  the  widow  before 
the  sale,  it  cannot  be  sold  under  the  order,  so  as  to  affect  her. 
[Lawrence  v.  Miller,  2  Com.  245.)  The  land  should  then  be  sold 
subject  to  her  life  estate  therein.  [Maples  v.  Howe,  3  Barb. 
Ch.  R.  611.) 

The  conveyances  are  to  be  executed  by  the  executors  or  admin- 
istrators, or  by  the  person  appointed  by  the  surrogate  to  make 
the  sale.  They  are  required  to  contain  and  set  forth,  at  large, 
the  original  order  authorizing  a  sale,  and  the  order  confirming  the 
sale,  and  directing  the  conveyance.  For  this  purpose,  therefore,  a 
copy  of  the  order  confirming  the  sale  and  directing  a  conveyance, 
duly  authenticated  under  the  seal  of  the  court,  should  be  delivered 
to  the  person  conducting  the  sale.  [Id.  §  31.  See  Appendix,  No. 
94,  for  form  of  deed.) 

The  effect  of  the  statute  of  1850,  ch.  82,  upon  the  regularity  of 
sales  in  cases  of  this  kind  has  already  been  noticed.  It  is  desir- 
able to  avoid  the  irregularities  alluded  to  in  the  statute,  as  they 
will  always  form  a  cloud  upon  the  title.     (3  R.  S.  192,  5th  ed.) 

It  has  already  been  observed,  that  the  surrogate  is  authorized 
from,  time  to  time  to  order  a  sale  of  so  much  of  the  real  estate 
whereof  the  testator  or  intestate  died  seised,  as  shall  be  sufficient 
to  pay  the  debts,  which  he  shall  have  entered  in  his  book,  as 
valid  and  subsisting.  (2  R.  S.  103,  §  18.)  If  the  avails  of  the 
first  sale  are  not  sufficient  for  this  purpose,  a  further  order  of  sale 
42 


330        SALE  OF  CONTRACT  OF  PURCHASE. 

may  be  made,  without  commencing  an  original  application.  The 
executors  or  administrators  in  such  a  case,  apply  on  the  foot  of  the 
first  decree.  Such  application  can  be  made  after  the  lapse  of 
three  years  from  the  date  of  the  letters  testamentary  or  of  admin- 
istration, if  the  original  application  was  made  within  that  period. 
It  is,  in  effect,  but  a  continuation  of  the  same  proceeding.  (Ap- 
pendix, 104,  105.) 

The  authority  imparted  by  the  surrogate's  order  to  an  executor 
or  administrator,  to  sell  the  real  estate  of  the  deceased,  is  a  mere 
naked  power,  not  coupled  with  any  interest.  A  contract,  therefore, 
by  an  administratrix  to  convey  lands  of  her  intestate,  when  a 
surrogate's  order  for  that  purpose  should  be-  obtained,  does  not 
vest  an  interest,  though  an  order  be  afterwards  obtained.  Such  a 
contract  is  void,  and  incapable  of  being  enforced  either  at  law  or 
in  equity,  not  only  on  account  of  a  want  of  interest  in  the  adminis- 
tratrix, but  also  as  being  contrary  to  public  policy.  (3  Cowen, 
302,  per  Sutherland  J.) 

The  proceedings  do  not  abate  by  the  death  of  the  executors  or 
administrators,  or  other  person  named  in  the  order,  or  their  remov- 
al or  disqualification,  while  the  order  of  sale  remains  unexecuted 
in  whole  or  in  part.  The  surrogate  is  authorized  to  empower  the 
administrator  de  bonis  non  of  the  original  testator  or  intestate, 
with  the  will  annexed,  or  otherwise,  or  a  disinterested  freeholder, 
as  in  the  case  of  the  original  order,  to  execute  the  said  order  in 
the  same  manner  and  with  the  like  effect,  as  if  such  death  or  dis- 
ability had  not  occurred,  on  their  giving  the  like  security.  (Law 
of  1850,  ch.  160.) 

The  provisions  of  the  statute  relative  to  the  lease,  mortgage  or 
sale  of  the  real  estate  of  the  deceased  for  the  payment  of  his  debts, 
which  have  hitherto  been  considered,  are  confined  to  the  real 
estate  of  inheritance  of  which  the  deceased  was  legally  seised,  at 
the  time  of  his  death.  A  mere  chattel  interest  or  an  estate  pur 
auter  vie,  vests  in  the  executors  or  administrators  as  assets,  with- 
out any  order  of  sale  from  the  surrogate.    (2  R.  S.  82,  §  6,  sub.  1.) 

It  remains,  therefore,  to  consider  that  species  of  interest  in  land 
which  arises  from  a  contract  of  purchase,  by  the  deceased  in  his 
lifetime,  before  the  legal  title  is  conveyed  by  the  vendor.     This 


SALE  OF  CONTRACT  OF  PURCHASE.        331 

interest  receives  its  denomination  from  the  quantity  of  estate  pur- 
chased. If  that  is  an  estate  of  inheritance,  the  title  which  passes 
to  the  purchaser  is  deemed  an  equitable  freehold  of  inheritance, 
and  subject  to  the  rules  of  descent  which  govern  the  transmission 
of  a  legal  freehold  of  inheritance.  (1  R.  S.  754,  §  27.)  If,  therefore, 
the  testator  or  intestate  is  possessed  of  a  contract  for  the  purchase 
of  land,  and  dies  before  a  title  is  conveyed  to  him  by  the  vendor, 
his  interest  under  such  contract  and  in  such  land  descends  to  his 
heirs,  and  does  not  vest  in  his  executors  or  administrators.  The 
heirs  alone  can  complete  the  purchase ;  though  they  had,  at 
common  law,  a  right  to  compel  the  executors  or  administrators  to 
pay  the  purchase  money,  left  unsatisfied  by  the  deceased  out  of 
the  personal  estate.     {Champion  v.  Brown,  6  ./.  Ch.  R.  398.) 

The  statute  which  requires  the  heir  or  devisee  to  remove  an 
incumbrance  on  the  estate  descended  or  devised,  without  resorting 
to  the  executor  or  administrator  of  his  ancestor,  unless  there  is  an 
express  direction  in  the  will,  throwing  the  incumbrance  on  the 
personal  estate,  relates  to  a  mortgage  by  name,  and  does  not 
specify  any  other  lien  or  incumbrance.  (1  R.  S.  749,  §  4.)  The 
lien  of  the  vendor  for  the  purchase  money  is  in  the  nature  of  an 
equitable  mortgage,  and  it  seems  to  me  falls  within  the  same 
reason,  and  should  be  discharged  by  the  heir  or  devisee  of  the 
vendee,  without  resorting  to  the  personal  representatives  of  the 
deceased. 

The  interest  which  the  deceased  has  in  land  which  he  has  con- 
tracted to  purchase,  and  for  which  no  conveyance  has  been  given 
by  the  vendor,  may  be  sold  under  an  order  of  the  surrogate,  on 
the  application  of  the  executors  or  administrators,  or  of  any  cred- 
itor in  the  same  case,  and  in  the  same  manner,  as  if  he  had  died 
seised  of  the  land  ;  and  the  same  remedy  is  extended  by  the  act  of 
1837,  ch.  460,  §  42,  where  the  deceased  was  the  assignee  of  the 
contract  for  the  purchase  of  land,  as  when  he  was  the  original  pu* 
chaser  ;  and  the  same  proceedings  are  to  be  had  in  conducting  the 
sale  as  in  other  cases.  The  sale  must  be  made  subject  to  all  pay- 
ments thereafter  to  become  due  on  the  contract.  If  there  are  fu- 
ture payments  to  be  made,  the  sale  must  not  be  confirmed  by  the 
surrogate  until  the  purchaser  shall  execute  a  bond  to  the  execu- 


332        SALE  OF  CONTRACT  OF  PURCHASE. 

tors  or  administrators  of  the  deceased,  for  their  benefit  and  indem- 
nity, and  for  the  benefit  and  indemnity  of  the  persons  entitled  to 
the  interest  of  the  deceased  in  the  lands  so  contracted  for.  (i.  e.  the 
heirs  or  devisees.)  in  a  penalty  double  the  whole  amount  of  pay- 
ments thereafter  to  become  due  on  such  contract,  with  such  sure- 
ties as  .the  surrogate  shall  approve,  conditioned  that  such  purchaser 
will  make  all  payments  for  such  lands  that  shall  become  due  after 
the  date  of  such  bond,  and  will  fully  and  amply  indemnify  the  ex- 
ecutors or  administrators  of  the  deceased,  as  the  case  may  be,  and 
the  persons  so  entitled  against  all  demands,  costs,  charges  and  ex- 
penses, by  reason  of  any  covenant  or  agreement  contained  in  such 
contract,  or  by  reason  of  any  other  obligation  or  liability  of  the 
deceased,  on  account  of  the  purchase  of  such  lands,  and  against  all 
other  covenants  and  agreements  of  the  deceased  to  the  vendor  of 
such  land  in  relation  thereto.  (2  R.  S.  Ill,  112,  §§  66,  67.  3  id. 
199,  200,  5th  ed.)  If,  however,  there  are  no  payments  which  be- 
come due  after  the  purchase,  no  bond  is  required  of  the  purchaser. 
(2  id.  Ill,  §  68.) 

On  confirming  the  sale,  the  surrogate,  instead  of  ordering  a  deed 
to  be  given  to  the  purchaser,  directs  the  executors  or  administra- 
trators  of  the  deceased,  to  execute  an  assignment  of  the  contract 
to  the  purchaser.  Such  assignment  vests  in  the  purchaser,  his 
heirs  and  assigns,  all  the  right,  interest  and  title,  of  the  persons 
entitled  to  the  interest  of  the  deceased  in  the  land  sold,  at  the 
time  of  the  sale  ;  and  the  purchaser  has  the  same  rights  and  rem- 
edies against  the  vendor  of  the  land,  as  the  deceased  would  have 
had  if  he  had  lived.     {Id.  69.) 

The  surrogate  may  order  only  a  part  of  the  land  so  -contracted 
for  to  be  sold  ;  in  which  case  the  purchaser  is  not  required  to  exe- 
cute a  bond.     {Id.  §  70.) 

The  money  arising  from  the  sale  is  to  be  brought  into  court, 
and  the  surrogate  is  required  to  distribute  it  as  in  other  cases,  after 
joying  all  charges,  and  satisfying  any  claim  of  dower  which  the 
widow  of  the  deceased  may  have  upon  the  lands  sold.     {Id.  k  71.) 

A  widow  is  not  strictly  entitled  to  dower,  as  such,  except  in 
lands  of  which  her  husband  was  seised,  of  an  estate  of  inheritance, 
at  sometime  during  the  coveture.  (1  id.  740.)  The  claim  for 
dower,  in  the  case  of  a  contract  to  purchase  lands,  is  declared  to 


DISTRIBUTION  OF  PROCEEDS.  333 

extend  only  to  the  annual  interest,  during  the  life  of  the  widow, 
upon  one  third  of  the  surplus  money  arising  from  the  sale,  which 
shall  remain  after  paying  all  sums  of  money  due  from  the  de- 
ceased, at  the  time  of  the  sale,  for  the  land  contracted  and  sold. 
(2  id.  112,  §  72.) 

Section  III. 

Of  distribution  of  the  avails  of  the  real  estate  of  the  deceased, 
leased,  mortgaged  or  sold,  under  the  order  of  the  stirrogate. 

In  cases  where  the  premises  have  been  leased  or  mortgaged  un- 
der the  order  of  the  surrogate,  the  executors  or  administrators,  we 
have  seen,  make  the  distribution  of  the  avails  among  the  creditors 
of  the  deceased,  and  they  are  liable  to  be  cited  before  the  surro- 
gate to  account. 

But  when  the  whole,  or  any  part  of  the  real  estate  of  the  de- 
ceased, is  sold  by  virture  of  an  order  of  the  surrogate,  the  moneys 
arising  from  such  sale  must  be  brought  into  the  office  of  the  sur- 
rogate granting  the  order,  for  the  purpose  of  distribution,  and  are 
to  be  retained  by  him  for  that  purpose.     (2  R.  S.  103,  §  35.) 

The  principles  on  which  distribution  is  to  be  made,  are  pointed 
out  in  the  statute.  The  surrogate,  in  the  first  place,  is  required 
to  pay  out  of  the  moneys  the  charges  and  expenses  of  the  sale. 
These  embrace  not  only  the  surrogate's  fees,  but  also  the  just  allow- 
ances to  be  made  to  the  executors  or  administrators  for  their  time  and 
disbursements.  In  the  next  place,  he  is  required  to  satisfy  any 
claim  of  dower  which  the  widow  of  the  testator  or  intestate  may  have 
upon  the  lands  so  sold.  The  widow,  it  is  provided,  is  entitled  to 
reasonable  notice  of  the  payment  of  the  avails  of  the  sale  into  court, 
in  order  that  she  may  elect  either  a  sum  in  gross  or  an  annuity  for 
life.  The  statute  does  not  prescribe  the  length  of  the  notice.  The 
reasonableness,  therefore,  of  the  notice  must  be  left  to  be  deter- 
mined by  the  surrogate,  on  a  view  of  the  facts  in  the  case.  If  the 
widow  elects  a  sum  in  gross,  upon  the  principles  of  law  applicable 
to  annuities,  as  a  reasonable  satisfaction  for  her  claim,  she  must 
sign  an  instrument,  in  writing,  consenting  to  accept  such  sum  in 
lieu  of  her  dower.  This  instrument  must  be  acknowledged  or 
proved  in  the  same  manner  as  deeds  entitled  to  be  recorded,  and 


334  DISTRIBUTION  OF  PROCEEDS. 

be  preserved  by  the  surrogate  among  the  papers  in  Lis  office. 
(2  A*.  S.  186,  §§  36.  37.     See  Appendix  as  to  form,  99  to  102.) 

If,  after  reasonable  notice  for  that  purpose,  no  such  consent  is 
"•iven,  the  surrogate  is  required  to  set  apart  one  third  of  the  pur- 
chase money  to  satisfy  the  claim  of  the  widow,  and  to  cause  it  to 
be  invested  in  permanent  securities,  on  annual  interest,  in  his 
name  of  office,  and  the  interest  is  to  be  paid  to  the  claimant  during 
life.     {Id.) 

The  supreme  court  has  adopted  the  Portsmouth  or  Northamp- 
ton tables,  as  affording  the  rule  to  ascertain  the  present  value  of 
the  widow's  dower.     (See  do.  in  Appendix,  103.) 

Having  paid  the  expenses  of  the  sale,  and  satisfied  the  claim 
for  dower,  the  balance  of  the  proceeds  is  to  be  distributed  among 
the  creditors,  in  proportion  to  their  respective  debts,  without 
fivinc  any  preference  to  bonds  or  other  specialties,  or  to  any  de- 
mand on  account  of  a  suit  being  brought  thereon.  (Id.  §  38.)  In 
this  distribution,  the  legislature  adopt  the  maxim  that  equality  is 
equity,  rather  than  another  maxim,  which  is  good  enough  in  its 
place — Qui  prior  est  tempore,  potior  est  jure. 

But  before  the  making  of  distribution,  notice  of  the  time  and 
place  of  making  it  must  be  published,  for  six  weeks  successively, 
in  the  county  where  the  surrogate  resides.  He  may  also  publish 
such  notice,  in  such  other  newspaper,  as  he  may  deem  most  likely 
to  give  notice  to  the  creditors.  (2  R.  S.  107,  §  40.)  An  order 
should  be  entered  in  the  book  of  sales  of  real  estate,  appointing 
the  time  and  place  for  making  the  distribution,  and  directing  the 
creditors  of  the  deceased,  whose  claims  have  not  been  before  pre- 
sented, to  exhibit  and  prove  them  before  the  surrogate.  (Ap- 
pendix, No.  95.) 

At  the  time  and  place  appointed,  and  at  such  other  times  and 
places  ■  as  the  surrogate  shall  appoint  for  that  purpose,  he  is  re- 
quired to  proceed  to  ascertain  the  valid  and  subsisting  debts 
against  the  testator  or  intestate,  and  to  hear  the  proofs  and  alle- 
gations of  the  claimants  of  such  debts,  and  of  the  executors  or  ad- 
ministrators, heirs,  devisees,  or  any  other  persons  interested  in  the 
estate  of  the  deceased,  or  in  the  application  of  the  proceeds  of  the 
sale.     (Id.  §  41.) 


DISTRIBUTION  OF  PROCEEDS.  335 

It  has  been  remarked  in  a  preceding  section  of  this  chapter, 
that  the  appropriate  time  to  exhibit  the  claims  against  the  estate, 
is  on  the  application  for  the  sale.  The  service  of  the  order  to 
show  cause  is  better  calculated  to  inform  the  parties  interested  in 
the  estate  of  the  deceased,  of  the  mesures  in  contemplation,  and 
to  enable  them  to  protect  their  respective  interests,  than  the  notice 
of  distribution.  Still,  however,  any  debts  or  demands,  not  pre- 
sented on  the  first  hearing,  may  be  presented  at  this  time ;  and 
are  entitled  to  be  allowed  on  being  proved  to  the  satisfaction  of 
the  surrogate.  Debts  established  on  the  first  hearing  are  not 
again  to  be  controverted  except  on  newly  discovered  evidence,  and 
then  only,  on  due  notice  to  the  claimant. 

As  the  proceeding  to  sell  the  real  estate  of  the  deceased  for  the 
payment  of  his  debts,  is  a  substitute  for  an  action  against  the 
heirs  or  devisees,  it  is  obvious  the  latter  should  be  entitled  to  make 
the  same  defense  against  any  claim  exhibited  against  the  estate, 
either  on  the  application  to  sell,  or  on  the  day  of  distribution, 
which  would  be  permitted  in  a  court  of  law  or  equity  in  an  action 
against  them  on  the  same  demand.  Hence,  payment,  the  statute 
of  limitations,  &c.  may  be  set  up  by  the  heir,  or  devisee,  or  any 
claiming  under  them,  and  in  a  proper  case,  a  feigned  issue  may  be 
ordered  by  the  surrogate,  to  enable  the  parties  to  submit  their 
defense  to  a  jury.  (2  R.  S.  102,  §  11 ;  107,  §  42.)  Any  equitable 
defense  also,  may  be  allowed.  (Matter  of  Wm.  Renwick, 
2  Bradf.  80.  Payne  v.  Mathews,  6  Paige,  10.  And  see  ante, 
§  1  of  this  chapter,  and  the  cases  cited.) 

As  the  parties  in  interest  may  appeal  from  the  order  of  the 
surrogate,  either  in  allowing  or  rejecting  any  claim  presented 
against  the  estate,  an  order  should  be  entered  in  the  book  of 
sales  on  establishing  or  rejecting  such  claims.  And  a  schedule 
containing  a  list  of  the  claims  allowed,  and  another  containing  a 
list  of  those  rejected  should  de  subjoined  to  the  order.  (Appen- 
dix, No.  97.) 

It  is  no  objection  to  an  indebtedness  founded  on  a  valuable 
consideration  that  it  is  not  due  at  the  day  of  distribution.  The 
creditor  to  whom  such  demand  belongs  is  entitled  to  receive  his 
proportion  with  other  creditors  after  deducting  a  rebate  of  legal 


336  DISTRIBUTION  OF  PROCEEDS. 

interest  upon  the  sum  distributed  for  the  unexpired  time  of  the 
credit.     (2  R.  S.  107,  §  39.) 

•The  revised  statutes  contemplate  that  the  creditors  of  the  de- 
ceased, whose  debts  have  acquired  no  legal  priority,  should  he 
paid  ratably  as  well  out  of  the  personal  as  the  real  assets. 
If,  therefore,  the  executors  or  administrators  have  made  an  un- 
equal distribution  of  the  personal  assets  among  the  creditors,  by 
paying  some  more  and  others  less  than  their  share,  the  surrogate 
should  so  marshal  the  avails  of  the  real  estate,  if  they  are  insuf- 
ficient to  pay  all,  that  each  of  the  creditors  will,  in  the  aggregate, 
receive  no  more  than  his  ratable  proportion.  (Livingston  v.  New- 
kirk,  3  John.  Ch.  318.)  The  doctrine  of  courts  of  equity  with 
respect  to  marshalling  assets  in  behalf  of  legatees,  creditors  and 
distributees,  and  that  of  marshalling  securities  in  favor  of  creditors 
and  sureties,  is  applicable  to  surrogates'  courts  in  cases  of  this 
kind.  For  the  doctrine  itself  and  some  of  the  cases  by  which  it 
is  illustrated,  see  WillaraVs  Eq.  Juris.  §  14  of  ch.  7,  p.  561, 
et  seq.     Conch  v.  Delaplaine,  2  Comst.  397. 

A  distribution  sheet  should  be  made  out  and  entered  in  the 
book  of  sales  containing  the  name  of  each  claimant,  the  whole 
amount  of  his  debt,  and  the  sum  to  which  he  is   entitled. 

If  the  proceeds  of  the  sale  exceed  the  debts  and  expenses,  the 
surplus  must  be  distributed  to  the  heirs  and  devisees  of  the  tes- 
tator or  intestate,  or  the  persons  claiming  under  them,  in  pro- 
portion to  their  respective  rights  in  the  premises  sold.  (2  R.  S. 
107,  §  43.  Sears  v.  Mark's  assignees,  2  Bradf.  394.)  The 
original  petition  will  afford  the  surrogate  the  requisite  evidence 
as  to  the  names  of  the  persons  claimed  to  be  heirs  or  devisees, 
unless  the  facts  therein  stated  are  controverted.  Any  dispute 
in  relation  to  the  persons  entitled  to  the  overplus,  must  necessa- 
rily be  settled  by  the  surrogate,  at  the  time  distribution  is  made. 
The  order  of  the  surrogate  in  this  respect,  is  the  subject  of  ap- 
peal, and  should  be  entered  in  the  book  of  sales  of  real  estate. 

If  the  sale  is  on  a  credit  as  to  a  part  of  the  consideration,  the 
securities  taken  must  be  returned  to  the  surrogate,  and  be  kept 
by  him  in  his  office.  It  is  his  duty  to  collect  the  moneys  due 
thereon,  from  time  to  time,  and  to  distribute  and  apply  the  same 


DISTRIBUTION  OF  PROCEEDS.  337 

among  the  creditors,  whose  debts  were  established  before  him,  in 
the  same  proportion,  as  is  directed  respecting  the  moneys  arising 
on  such  sale.  (Id.  §  44.)  In  case  any  portion  of  such  surplus 
money  belongs  to  a  minor,  or  to  a  person  who  has  only  a  temporary 
interest  in  said  money,  and  the  reversionary  interest  belongs  to 
another  person,  the  surrogate  is  required  to  make  such  order  for 
the  investment,  and  the  payment  of  the  interest  and  of  the  princi- 
pal, as  the  supreme  court  is  authorized  to  do  in  analogous  cases. 
The  investments  in  such  cases  are  required  to  be  secured  by  mort- 
gage  upon  unincumbered  real  estate,  within  this  state,  worth  at 
least  double  the  amount  of  such  investment,  exclusive  of  buildings 
thereon,  in  the  name  of  the  office  of  the  surrogate,  and  he  is  re- 
quired to  keep  the  securities  in  his  office,  and  to  distribute  the  in- 
terest and  principal  in  conformity  to  the  order  under  which  the 
investment  is  made,  and  to  the  person  or  persons  entitled  thereto. 
(L.  O/1850,  ch.  150,  §  1  and  2.     3  R.  S.  195,  5th  ed.) 

He  is  also  required  to  keep  in  his  office,  as  a  part  of  his  official 
papers,  the  securities  taken  by  him,  on  the  investment  of  a  princi- 
pal sum,  at  annual  interest,  to  satisfy  a  dower  claim.  These  secu- 
rities are  to  be  delivered  to  his  successor  in  office.  And  it  is  his 
duty  to  collect  such  interest,  and  pay  the  same  to  the  person  en- 
titled thereto.     (2  R.  S.  107,  §  45.) 

After  the  death  of  the  person  entitled  to  such  interest,  the 
principal  sum  must  be  collected,  and,  after  deducting  the  costs  and 
charges  of  the  surrogate  in  the  management,  collection  and  distri- 
bution thereof,  the  residue  must  be  distributed  among  the  creditors 
of  the  deceased,  who  shall  have  established  their  debts  previous 
to  the  original  investment  of  the  principal  sum,  in  the  same  man- 
ner, and  with  the  like  effect  as  is  provided  for  the  distribution  of 
the  sales  of  real  estate.     (Id.  §  46.) 

If  there  is  any  surplus  remaining  after  such  distribution,  it  is 
directed  to  be  divided  among  the  heirs  and  devisees  of  the  testator, 
or  the  heirs  of  the  intestate,  or  the  persons  claiming  under  them, 
in  proportion  to  their  respective  rights  in  the  premises  sold. 
{Id.  §  47.) 

It  seems  to  be  the  policy  of  the  act  to  apply  the  moneys  arising 
from  the  first  sale  to  the  payment  of  the  debts  proved  before  the 
43 


338  DISTRIBUTION  OF  PROCEEDS. 

surrogate  on  the  first  application,  or  established  before  him  on  the 
day  appointed  for  the  first  distribution,  or  on  the  day  to  which  it 
may  be  adjourned.  Those  creditors  seem  to  have  acquired  by 
their  vigilance,  a  lien  upon  the  fund,  which  ought  not  to  be  dis- 
turbed by  the  appearance  of  debts  not  presented  on  either  of  the 
foregoing  occasions.  If  it  was  in  the  power  of  the  surrogate  to 
open  his  decree  for  final  distribution,  on  the  appearance  of  every 
new  debt,  the  policy  of  the  measure  might  well  be  questioned.  It 
would  lead  to  great  delay  and  expense.  And,  as  no  means  are 
pointed  out  to  notify  those  interested  in  the  estate  of  the  present- 
ing a  new  claim,  that  they  might  appear  and  contest  it,  the  inves- 
tigation of  its  validity  and  merits  would  almost  always  be  ex  parte 
and  imperfect.  Hence,  the  doubtful  and  unjust  claims  would 
always  be  withheld  until  after  the  hearing  under  the  notice  of  dis- 
tribution. 

It  is  believed,  however,  that  the  surrogate  cannot  open  his  de- 
cree for  distribution,  after  it  is  made  ;  and  it,  therefore,  necessarily 
follows,  that  all  the  avails  of  the  first  sale,  whether  the  payment 
of  a  part  is  postponed  to  a  future  day,  or  invested  to  secure  a 
dower  claim,  must  ultimately  be  paid  towards  the  satisfaction  of 
the  debts  established  on  the  first  or  second  hearing. 

The  effect  of  the  sale  of  the  real  estate  on  debts  not  presented 
to  the  surrogate,  and  allowed,  and  on  the  heirs  and  devisees,  may 
be  gathered  from  a  view  of  other  provisions  of  the  act.  It  has 
already  been  shown  that,  during  the  three  first  years  succeeding 
the  date  of  the  letters  testamentary,  or  of  administration,  the  heirs 
and  devisees  are  not  liable  to  be  sued  by  any  creditor  of  the  de- 
ceased. (2  R.  IS.  109,  §  5-3.)  Butts  v.  Getmtig,  5  Paige,  254. 
Wilson  v.  Wilson,  13  Barb.  252.)  By  the  33d  section  (2  R.  S. 
105)  it  is  enacted  that  if  the  proceeds  arising  from  the  mortgage, 
lease,  or  sale  of  any  lands,  made  pursuant  to  the  order  of  any  sur- 
rogate, which  shall  be  paid  over  to  the  surrogate,  shall  be  sufficient 
to  pay  all  the  debts  established  before  the  surrogate,  on  granting 
the  order,  the  heirs  and  devisees  of  the  testator  or  intestate,  and 
all  the  remaining  lands  of  which  he  died  seised,  shall  be  exonerated 
from  all  claim,  or  charge  by  reason  of  such  debts  so  established. 
If  the  proceeds  shall  not  be  sufficient  for  that  purpose,  the  heirs 
and  devisees,  and  the  remaining  land,  shall  be  exonerated  from 


DISTRIBUTION  OF  PROCEEDS— COSTS.  339 

such  debts,  in  proportion  to  the  sum  raised,  and  paid  over.  Hence, 
after  the  termination  of  the  proceedings  before  the  surrogate,  the 
heirs  and  devisees  become  liable  to  the  creditors  whose  debts  are 
unpaid,  whether  allowed  by  the  surrogate  or  not,  to  the  extent  of 
the  real  estate  received  by  them,  by  descent  or  devise.  But  if  the 
sale  under  the  surrogate's  order  embraced  all  the  real  estate  of 
which  the  deceased  died  seised,  and  the  avails  were  all  exhausted 
in  paying  the  debts  and  expenses,  it  would  seem  that  the  creditor 
who  omitted  to  present  his  claim  to  the  surrogate  for  allowance  at 
the  proper  time,  is  remediless.  There  is  no  provision  in  the  act 
authorizing  him  to  require  the  creditors  whose  debts  have  been 
paid  to  refund  a  proportional  part.  Having  received  their  debts, 
or  a  ratable  share  thereof,  under  the  decree  of  a  court  of  compe- 
tent jurisdiction,  they  are  entitled  to  avail  themselves  of  the  fruits 
of  their  superior  vigilance. 

By  the  act  of  1844,  ch.  300,  §  2,  the  surrogate  was  allowed  for  dis- 
tributing any  money  brought  into  his  office  on  the  sale  of  real  estate, 
two  per  cent ;  but  such  commission  was  not  in  any  case  to  exceed 
twenty  dollars  for  distributing  the  whole  money  raised  by  such 
sale  ;  and  no  executors  or  other  persons  authorized  to  sell  any  real 
estate  by  order  of  any  surrogate,  are  allowed  any  commission  for 
receiving  or  paying  to  the  surrogate  the  proceeds  of  such  sale ; 
but  they  are  allowed  their  expenses  in  conducting  such  sale,  in- 
cluding two  dollars  for  every  deed  prepared  and  executed  by  them 
thereon,  and  a  compensation  not  exceeding  two  dollars  a  day  for 
the  time  necessarily  occupied  on  such  sale.  (3  R.  IS.  921,  5th  ed.) 
Since  1847,  surrogates  have  been  compensated  by  a  stated  salary, 
and  the  fees  of  the  office  are  accounted  for  by  them  to  the  county 
treasurer  of  their  respective  counties. 

In  contests  relative  to  the  validity  of  claims  presented  against 
the  estate  of  the  deceased,  the  surrogate  may  award  costs  to  the 
party  in  his  judgment  entitled  thereto,  to  be  paid  either  by  the 
other  party,  personally,  or  out  of  the  estate  which  is  the  subject  of 
controversy.  (2  R.  S.  223,  §  10.)  By  the  laws  of  1837,  p.  536, 
it  Avas  provided  that  in  all  cases  where  the  surrogate  is  authorized 
by  law  to  award  costs,  he  shall  tax  them  at  the  same  rate  allowed 
for  similar  services  in  the  courts  of  common  pleas.  The  rates  al- 
lowed at  that  time  in  courts  of  common  pleas,  were  the  same  as 


340  DISTRIBUTION"  OF  PROCEEDS— COSTS. 

the  common  pleas  costs  established  by  the  revised  statutes  of  1830. 
Notwithstanding  those  courts  have  since  been  abolished  by  the 
present  constitution,  it  has  been  held  by  the  learned  surrogate  of 
New  York,  in  Western  v.  Romaine,  1  Bradf.  37,  that  the  old 
common  pleas  fee  bill  is  still  to  be  followed  in  the  taxation  of  these 
costs  as  far  as  it  is  applicable.  (See  also  Burtis  v.  Dodge, 
1  Barb.  Ch.  B.  91.)  It  would,  in  many  cases,  be  inequitable,  to 
require  the  estate  to  sustain  the  expense  of  resisting  unjust  de- 
mands, presented  to  the  surrogate  for  allowance.  The  power  of 
subjecting  the  unsuccessful  party  to  the  payment  of  costs,  should  be 
so  exercised  that  while  it  will  protect  the  estate  against  stale  and 
unfounded  claims  on  the  one  hand,  it  will  restrain  the  executors, 
or  other  persons,  conducting  the  proceedings,  from  resisting,  with- 
out reason,  such  as  are  meritorious. 

The  proceedings  on  distributing  the  avails  of  an  equitable  free- 
hold, sold  under  the  order  of  the  surrogate,  are  in  substance  the 
same  as  those  which  we  have  been  considering.  The  surrogate, 
however,  in  the  first  instance  pays  the  vendor  such  sum  as  is  due 
on  account  of  the  contract,  and  distributes  the  balance  among  the 
creditors  of  the  deceased.  The  surplus,  after  paying  debts  and 
expenses,  is  to  be  paid  to  the  persons  who  would  have  been  enti- 
tled thereto,  if  there  had  been  no  sale,  in  proportion  to  their  re- 
spective rights  in  the  premises  sold.  These  persons  have  been 
before  shown,  to  be  the  heirs  or  devisees  of  the  deceased.  (2  R.  S. 
112,  §  73.) 

Where  a  portion  only  of  the  land  so  contracted  is  sold,  the  ex- 
ecutor or  administrator  is  required  to  execute  a  conveyance  therefor 
to  the  purchaser,  which  shall  transfer  to  him  all  the  rights  of  the 
deceased  to  the  portion  so  sold,  and  all  the  rights  which  shall  be 
acquired  to  such  portion,  by  the  executor  or  administrator,  or  by 
the  persons  entitled  to  the  interest  of  the  deceased  in  the  land 
sold,  at  the  time  of  the  sale,  on  the  perfecting  of  the  title  to  such 
land,  pursuant  to  the  contract.     (Id.  §  74.) 

Upon  the  payment  being  made  in  full,  on  a  contract  for  the  pur- 
chase of  land,  a  portion  of  which  shall  have  been  sold,  according 
to  the  preceding  provisions,  the  executors  or  administrators  of  the 
deceased  are  declared  to  have  the  same  right  to  enforce  the  per- 
formance of  the  contract  which  the  deceased  would  have  had  if  he  had 


DISTRIBUTION— SALE  UNDER  POWER.  341 

lived  ;  any  deed  that  shall  be  executed  to  them,  shall  be  in  trust, 
and  for  the  benefit  of  the  persons  entitled  to  the  interest  of  the 
deceased,  subject  to  the  dower  of  the  widow,  if  there  be  any,  ex- 
cept for  such  part  of  the  land  so  conveyed  as  shall  have  been  sold 
to  a  purchaser,  according  to  the  preceding  provisions  ;  and  as  to 
such  part  the  said  deed  shall  enure  to  the  benefit  of  the  purchaser. 
{Id.  §  75.) 

The  foregoing  provisions  of  the  act  are  sufficiently  plain,  and  do 
not  seem  to  have  led  to  any  controversy. 

We  have  hitherto  considered  only  those  cases  of  distribution 
where  the  fund  has  been  created  by  a  sale  of  real  estate,  or  equita- 
ble interests,  in  pursuance  of  the  order  of  the  surrogate's  court. 
But  there  is  another  class  of  cases  where  the  fund  is  permitted  to 
be  brought  into  the  same  court  for  distribution,  upon  the  like  prin- 
ciples. Those  cases  are  where  the  real  estate  of  the  testator,  or 
some  interest  therein,  has  been  devised  to  the  executors  to  be  sold 
by  them ;  or  where  they  have  been  authorized  to  sell  either  for 
payment  of  debts  or  legacies.  In  the  first  of  these  classes,  if  any 
one  or  more  of  the  executors  neglect  or  refuse  to  take  upon  him 
the  execution  of  the  will,  the  sale  by  any  such  as  do  take  upon 
themselves  the  execution  of  the  will,  is  eqally  valid  as  if  the  oth- 
ers had  joined  in  the  sale.  (2  R.  S.  109,  §  55.  Ogden  v.  Smith) 
2  Paige,  197,  8.  Sharp  v.  Pratt.  15  Wend.  610.)  The  result 
is  the  same  on  the  death  of  one  of  several  executors  ;  the  survivors 
can  execute  the  trust.  But  if  one  or  more  be  removed  by  the 
court,  or  his  resignation  be  accepted,  the  remainder  cannot  execute 
a  power  of  sale  so  as  to  vest  a  good  title  in  the  purchaser.  (In 
the  matter  of  Van  Wyck,  1  Barb.  Ch.  R.  565.) 

The  right  of  those  who  qualify  to  execute  the  power,  when  a 
part  renounce,  applies  as  well  to  discretionary  as  to  peremptory 
powers  of  sale.  {Taylor  v.  Morris,  1  Comst.  341.)  But  the 
power  in  this  class  of  cases  cannot  be  exercised  on  the  death  of 
the  last  surviving  executor  by  an  administrator,  with  the  will  an- 
nexed. (Dominick  v.  Michael,  4  Sandf.  S.  C.  R.  374.)  Such 
administrator  succeeds  merely  to  the  rights,  powers  and  duties,  of 
the  executors,  in  relation  to  the  jiersonal  estate,  and  not  to  any 
power  over  the  real  estate.     (Id.) 


342  DISTRIBUTION— SALE  UNDER  POWER. 

Unless  it  be  otherwise  directed  in  the  will,  such  sales  may  be 
public  or  private,  and  on  such  terms  as.  in  the  opinion  of  the  ex- 
ecutor, shall  be  most  advantageous  to  those  interested  therein. 
(L.  o/1837,  ch.  460,  §  43.     8  R.  S.  197,  5th  ed.) 

There  is  no  doubt  of  the  jurisdiction  of  the  surrogate,  in  whose 
office  the  will  is  proved,  to  cite  the  executors  to  account  for  the 
proceeds  of  the  sale  of  real  estate  of  the  testator,  made  by  them 
under  a  power  of  the  will,  either  for  the  payment  of  debts  or 
legacies,  and  to  compel  a  distribution,  as  if  the  proceeds  had  been 
originally  personal  property,  in  the  hands  of  an  administrator. 
(2  R.  S.  109,  §  57.  Stagg  v.  Jackson,  1  Comst.  210.  Clark  v. 
Clark.  8  Paige,  153.  Bloodgood  v.  Bruen,  1  Bradf.  8.  Hall 
v.  McLaughlin,  id.  107.) 

The  75th  section  of  the  act  of  1837,  p.  537,  authorizes  the  ex- 
ecutor, who  has  made  any  sale  in  pursuance  of  any  authority  given 
by  any  last  will  and  testament,  to  bring  the  proceeds  into  the  of- 
fice of  the  surrogate,  before  whom  the  will  was  proved,  for  dis- 
tribution, and  in  that  case  it  requires  the  surrogate  to  distribute 
the  same,  in  like  manner,  and  upon  the  like  notice,  as  if  such  pro- 
ceeds had  been  paid  into  his  office,  in  pursuance  of  an  order  of 
sale  of  real  estate  for  the  payment  of  debts.  But  the  executor  is 
not  absolutely  required  to  do  this,  but  may  distribute  the  pro- 
ceeds himself,  in  which  case  he  may  be  called  to  account  for  the 
same,  as  has  already  been  shown.  The  authority  to  pay  it  into 
court  is  for  the  benefit  and  protection  of  the  executor,  and  not  for 
the  additional  security  of  those  interested  in  the  fund.  {Holmes 
v.  Cook,  2  Barb.  Ch.  R.  429.) 

It  need  scarcely  be  added,  that  the  authority  given  to  executors 
by  a  will,  for  the  sale  of  real  estate  of  the  testator,  must  be 
strictly  pursued.  Where  the  testator  has  given  no  authority  to 
sell  real  estate,  the  executors  cannot  sell  any  portion  of  it,  either 
for  the  purpose  of  division  or  otherwise.  {Craig  v.  Craig,  3 
Barb.  Ch.  R.  77.)* 

*  The  authority  to  sell  the  real  estate  of  deceased  persons  for  the  payment  of 
debts,  was  first  given  to  the  court  of  probate  in  the  year  1786,  by  a  single  section 
of  the  statute.  From  that  inconsiderable  beginning,  the  system  has  swelled  to  its 
present  monstrous  proportions.  It  is.  indeed,  a  cumbersome,  dilatory,  and  expen- 
sive mode  of  making  a  man's  real  estate  available  for  the  payment  of  his  dehts. 


DISTRIBUTION.  843 

It  is  some  relief  to  know  that  no  man  is  obliged,  as  a  matter  of  course,  to  leave 
his  affairs  in  such  a  way  as  to  render  a  resort  to  this  proceeding  necessary.  It  is 
consolatory  to  reflect  that  every  man  can,  by  a  judiciously  constructed  will,  provide 
for  the  sale  and  disposition  of  his  real  estate,  without  a  resort  to  the  surrogate  for 
authority.  lie  may,  if  he  pleases,  make  his  real  estate  the  primary,  or  the  auxil- 
iary fund,  for  the  paymeut  of  both  debts  and  legacies.  But  a  large  portion  of  men 
die  intestate,  and  a  still  larger  portion  are  reluctant  to  give  their  executors  the 
same  power  over  their  real  estate,  as  the  law  imparts  to  them  over  their  person- 
alty.    Hence,  the  present  system  will  continue,  perhaps,  for  years  to  come. 

When,  nearly  a  quarter  of  a  century  ago,  the  act  of  1837,  ch.  460,  was  in  the 
hands  of  the  then  attorney  general,  (Bronson,)  by  whom,  under  the  direction  of  a  pre- 
vious legislature,  it  was  prepared,  he  sent  a  printed  copy  of  it  to  the  different  surro- 
gates then  in  office,  with  a  request  that  they  would  furnish  him  with  any  suggestions 
which  occurred  to  them,  with  respect  either  to  the  general  subject,  or  to  the  statute 
as  framed  by  him.  The  writer  of  this  treatise  was,  at  that  time,  surrogate  of 
Washington  county,  and  had  devoted  much  time  to  the  consideration  of  those 
branches  of  the  law  affecting  that  department.  In  answer  to  the  communication  of 
the  attorney  general,  he  suggested,  as  a  substitute  for  the  whole  proceedings  in  the 
surrogate's  court,  for  the  sale,  leasing,  or  mortgaging  of  real  estate  for  the  payment 
of  debts,  a  change  in  the  law  relative  to  the  administration  of  the  estates  of  de- 
ceased persons,  by  virtue  of  which  the  testator's  real  estate  should  be  assets  in  the 
hands  of  his  executors  or  administrators,  in  the  same  manner  as  his  personal  chat- 
tels and  choses  in  action.  He  thought  there  was  no  more  clanger  in  making  this 
change,  than  there  was  a  generation  earlier  in  making  a  man's  real  estate  liable  to 
execution  at  the  suit  of  his  creditors,  in  his  lifetime,  and  to  the  payment  of  his 
debts  by  simple  contract  or  specialty  in  the  hands  of  his  heirs  or  devisees  after  his 
death.  He  thought  there  was  no  more  danger  in  entrusting  executors  or  adminis- 
trators with  the  sale  of  a  farm  worth  ten  thousand  dollars,  than  with  the  dominion  over 
the  same  amount  in  value  of  bank  stock,  or  other  personal  property.  His  sugges- 
tions failed  to  convince  the  attorney  general,  and  the  change  recommended  was 
not  adopted.  The  glory,  therefore,  of  the  improvement,  remains  for  some  future 
reformer. 

Few  institutions  of  the  middle  ages  made  a  stronger  impression  on  the  human 
mind  than  the  feudal  system.  It  is  to  that  system  we  are  indebted  for  our  law  of 
real  estate.  The  distinctive  character  of  the  institution — the  inalienability  of  the 
feud — impressed  itself  with  unyielding  tenacity  upon  tire  soil,  and  made  the  occu- 
pant the  dependent  vassal  of  his  lord.  Every  clog  that  has  been  removed  from  the  free 
circulation  of  real  property,  for  the  last  300  years,  from  the  statute  of  wills  and  the 
abolition  of  knight  service,  to  the  subjecting  land,  in  any  form,  to  the  payment  of 
debts,  has  been  a  hard  won  triumph  over  ignorance  apd  prejudice. 


544  COMPELLING  EXECUTORS,  &o.  TO  SELL. 


CHAPTER   II. 

OF  PROCEEDINGS  AGAINST  EXECUTORS  OR  ADMINISTRATORS  TO 
COMPEL  THEM  TO  CAUSE  AN  APPLICATION  TO  BE  MADE  TO 
THE  SURROGATE  FOR  AN  ORDER  TO  LEASE,  MORTGAGE  OR 
SELL  THE  REAL  ESTATE  OF  THE  DECEASED,  FOR  THE  PAY- 
MENT OF  HIS  DEBTS. 

In  the  last  chapter  we  treated  of  the  cases  where  the  proceed- 
ings on  the  part  of  the  executors  or  administrators  were  volunta- 
ry on  their  part.  This  embraces  most  of  the  cases  that  will  arise, 
and  all  the  cases  which  previous  to  1830,  could  be  discussed  in 
surrogates'  courts.  If  the  executors  or  administrators  neglected 
or  refused  to  invoke  the  aid  of  the  surrogate  to  reach  the  real  es- 
tate of  the  deceased  for  the  payment  of  debts,  the  remedy  of  the 
creditor,  in  case  of  a  deficiency  of  personal  assets,  was  against 
the  heirs  or  devisees  of  the  testator  or  intestate.  This  was  a  slow 
and  expensive  proceeding,  and  resulted  in  the  exclusive  benefit  of 
the  plaintiff  who  was  the  most  vigilant  in  bringing  his  suit.  It 
thus  prevented  an  equal  distribution  of  the  estate.  This  was 
contrary  to  the  policy  of  the  law  in  other  respects,  and  the  re- 
visers proposed,  and  the  legislature  adopted,  the  present  plan  as  a 
substitute  for  actions  brought  by  creditors  against  the  heirs  and 
devisees. 

The  system,  as  first  adopted,  limited  the  period  within  which 
the  application  could  be  made  to  three  years  from  the  date  of  the 
letters  testamentary  or  of  administration,  and  forbid  any  suit  from 
being  brought,  during  the  same  period,  against  the  heirs  or  de- 
visees of  the  realty,  in  order  to  charge  them  with  the  debts  of  the 
testator  or  intestate.  (2  R.  S.  108,  §  48.  Id.  109,  §  53.)  Nor 
could  it  be  instituted  until  after  the  rendering  a  final  account  by 
the  executors  or  administrators.  This  last  provision  is  still  in 
force,  when  the  application  is  by  a  creditor.  The  limitation  to 
three  years  is  repealed.  The  72d  section  of  ch.  460,  of  the  Laws 
of  1837,  as  amended  in  1843,  ch.  172,  and  1847.  ch.  298,  is  sub- 
stituted for  the  original  48th  section  of  the  revised  statutes.  In 
substance  it  provides  that  if  after  the  rendering  of,  and  account- 


COMPELLING  EXECUTORS,  &o.  TO  SELL.  345 

ing  by  an  executor  or  administrator  to  a  surrogate  as  provided  by 
the  revised  statutes,  it  shall  appear  that  there  are  not  sufficient 
assets  to  pay  the  debts  of  the  deceased,  the  surrogate,  vpon  the 
application  of  any  creditor,  made  at  any  time  after  the  granting 
of  letters  testamentary  or  of  administration,  shall  grant  an  order 
for  such  executor  or  administrator  to  show  cause  why  he  should 
not  be  required  to  mortgage,  lease  or  sell  the  real  estate  of  the 
deceased,  for  the  payment  of  his  debts ;  but  he  shall  not  assign 
for  cause  why  he  should  not  be  ordered  to  sell  real  estate,  that 
the  time  within  which  he  is  allowed  to  sell  the  same  has  expired ; 
and  where  a  judgment  has  been  recovered  or  decree  obtained 
against  an  executor  or  administrator,  for  any  debt  due  from  the 
deceased,  and  there  are  not  sufficient  assets  in  the  hands  of  such 
executor  or  administrator  to  satisfy  the  same,  the  debt  for  which 
the  judgment  or  decree  was  obtained  shall,  notwithstanding  the  form 
of  such  judgment  or  decee,  remain  a  debt  against  the  estate  of  the 
deceased  to  the  same  extent  as  before,  and  to  be  established  in  the 
same  manner  as  if  no  such  judgment  or  decree  had  been  obtained. 
Provided,  that  where  such  judgment  or  decree  has  been  obtained 
upon  a  trial  or  hearing  upon  the  merits,  the  same  shall  be  prima 
facie  evidence  of  such  debt  before  the  surrogate.  (3  R.  S.  196. 
Uh  ed.) 

If  the  executors  or  administrators  have  not  rendered  their  ac- 
count to  the  surrogate,  the  creditor  intending  to  proceed  under  the 
foregoing  section,  must  compel  them  to  do  so  under  the  provisions 
with  respect  to  accounting,  which  are  treated  of  in  another  chap- 
ter. The  rendering  of  an  account  by  a  part  only  of  the  executors 
or  administrators  is  not  enough.  All  must  be  compelled  to  ac- 
count, before  the  creditor  can  proceed  in  this  way.  {San ford  v. 
Granger,  12  Barb.  392.)  The  costs  of  the  judgment  awarded 
urrainst  the  executors  can  in  no  event  be  a  charge  on  the  real  estate, 
in  the  hands  of  the  heir.     {Id.) 

The  order  on  the  executors  or  administrators  to  show  cause  must 
be  served  on  them  personally,  at  least  fourteen  days  before  the  day 
therein  appointed  for  showing  cause.  (2  R.  S.  108,  §  49.)  This 
order  will  be  obtained  on  the  presentation  of  a  petition  duly  verified, 
setting  forth  the  facts  which  entitle  the  creditor  to  the  order. 
The  form  given  for  the  orignal  petition  by  the  executors  or  admin- 

44 


346  COMPELLING  EXECUTOFwS,  &c,  TO  SELL. 

istrators  with  suitable  modifications,  which  will  readily  occur  to  an 
attentive  person,  will  enable  the  creditor  or  his  counsel  to  prepare 
the  appropriate  petition.  If  there  be  infants,  similar  proceedings 
to  those  heretofore  described,  must  be  had  for  the  appointment  of 
guardians  ad  litem. 

On  the  return  of  the  order  requiring  the  executors  or  adminis- 
trators to  show  cause,  if  no  cause  to  the  contrary  be  shown,  the 
surrogate  is  required  to  order  notice  of  the  application  to  be  served 
and  published  in  the  manner  hereinbefore  directed,  on  the  appli- 
cation of  an  executor  ;  and  if  at  the  day  appointed  in  such  notice, 
the  surrogate  shall  be  satisfied  of  the  matters  specified  in  the  14^/t 
section  of  title  4,  ch.  G,  of  part  2d  of  the  revised  statutes,  he 
may  order  such  executor  or  administrator  to  mortgage,  lease  or 
sell  so  much  of  the  real  estate  of  which  the  testator  or  intestate 
died  seised,  as  shall  be  sufficient  for  the  payment  of  the  debts 
established  before  him.     (2  R.  8. 108,  §  50.) 

If  it  appears  on  the  return  of  the  first  order  for  the  administra- 
tors or  executors  to  show  cause  that  all  the  personal  estate  has 
been  applied  to  the  payment  of  debts,  and  that  there  remain  claims 
unpaid,  for  the  satisfaction  of  which  a  sale  of  the  real  estate  may 
be  made,  the  surrogate  is  bound  to  issue  the  second  order  requiring 
all  persons  interested  in  the  estate  to  show  cause  against  the  ap- 
plication. {Richardson  v.  Judah.  2  Bradf.  157.)  In  this  re- 
spect the  statute  is  peremptory.  But  with  respect  to  the  order 
requiring  the  executors  or  administrators  to  mortgage,  lease  or 
sell  so  much  of  the  real  estate  whereof  the  testator  or  intestate 
died  seised,  as  shall  be  sufficient  for  the  payment  of  the  debts  estab- 
lished before  him,  it  is  otherwise.  The  language,  instead  of  being 
imperative,  leaves  it  discretionary  with  the  surrogate  to  grant  the 
order  or  withhold  it.  This  discretion  is  not  an  arbitrary,  but  a 
judicial  discretion,  to  be  exercised  according  to  the  justice  and 
equity  of  the  case. 

If  there  has  been  great  and  inexcusable  delay  on  the  part  of 
the  creditor,  in  instituting  the  proceedings  ;  if  he  has  lain  by  and 
seen  the  real  estate  change  owners ;  if  the  demand  sought  to  be 
enforced,  would  be  barred  by  the  statute  of  limitations,  provided 
an  action  at  law  or  in  equity  were  brought  to  recover  it  in  the 
supreme  court ;  or,  if,  indeed,  it  were  a  stale  and  unmeritorious 


COMPELLING  EXECUTORS,  &o.,  TO  SELL.  347 

claim,  the  surrogate  would,  in  either  case,  be  warranted  in  with- 
holding the  relief  iuvoked,  at  least,  until  the  justice  of  it  had  been 
established  by  a  decision  of  the  court,  in  an  action  against  such  exec- 
utors or  administrators  brought  to  recover  the  same.  And  even  in 
the  latter  case,  we  have  seen  that  such  judgment,  though  obtained 
after  a  trial  or  hearing  upon  the  merits,  is  only  prima  facie 
evidence  of  a  debt  before  the  surrogate ;  thus,  leaving  it  with  him 
to  determine,  at  last,  whether  equity  requires  that  the  real  estate 
of  which  the  testator  or  intestate  died  seised  should  be  sold  to  pay 
it.  There  may  be  other  defenses  to  the  claim  of  which  enough 
has  been  said  in  the  preceding  chapter. 

The  creditor  is  not  remediless  if  the  surrogate  declines  to  grant 
an  order  for  the  sale  of  the  real  estate.  He  may  bring  his  action 
against  the  heirs  or  devisees,  after  the  expiration  of  three  years 
from  the  time  of  granting  the  letters  testamentary  or  of  adminis- 
tration. (2  R.  S.  109,  452,  453.)  The  court  would  not  stay  the 
action,  unless  the  surrogate  should  grant  an  order  of  sale,  nor  then 
unless  the  plaintiff  should  allege  that  lands  have  descended  to  the 
heirs  or  been  devised  to  the  devisees,  which  were  not  included  in 
any  order  of  sale,  in  which  case  a  decree  in  such  suit  would  not 
change  or  in  any  way  affect  any  land  so  ordered  to  be  sold.  {Id. 
109,  §  53.) 

Should  the  surrogate  decide  to  grant  the  order  of  sale,  his 
judgment  cannot  be  reviewed  by  the  executors  or  administrators, 
nor  can  they  defeat  the  proceedings  by  refusing  or  neglecting  to 
serve  and  publish  the  notices  required,  or  to  do  any  other  act 
necessary  to  authorize  the  order.  In  such  a  case  the  surrogate  is 
empowered  to  appoint  a  disinterested  freeholder  to  perform  the 
duties  enjoined  upon  the  executors  or  administrators,  who  is  re- 
quired to  proceed  therein  in  the  same  manner  as  the  former  were 
directed  to  do.     (2  R.  JS.  109  §  53.) 

The  subsequent  proceedings  in  case  a  sale  is  ordered,  will  be 
similar  to  those  already  discussed  in  the  preceding  chapter. 


348  LEGACIES. 


CHAPTER  III. 

OP  LEGACIES,    THEIR    DIFFERENT    KINDS    AND    INCIDENTS,    AND 
THE    CONSTRUCTION    THEREOF. 

Section  I. 
Of  the  different  kinds  of  legacies. 

Legacies  with  respect  to  their  subject  matter  are  of  two  descrip- 
tions, either  general  or  specific.  The  former  appellation  is  ex- 
pressive of  such  as  are  pecuniary,  or  merely  of  quantity.  Under 
the  denomination  of  specific  legacies,  two  kinds  of  testamen- 
tary gifts  are  included ;  as  first,  where  a  certain  chattel  is  par- 
ticularly described,  and  distinguished  from  all  others  of  the  same 
species,  as  "I  give  the  diamond  ring  presented  to  me  by  A." 
This  legacy  can  be  satisfied  only  by  the  delivery  of  the  indentical 
ring ;  and  if  it  be  found  not  among  the  testator's  effects,  it  fails 
altogether,  unless  it  be  in  pawn,  when  the  executor,  it  is  said, 
must  redeem  it  for  the  legatee.  The  second  kind  of  specific 
legacy  is  where  a  chattel  of  a  certain  species  is  bequeathed  without 
any  designation  of  it  as  an  individual  chattel,  as  "  I  give  a  diamond 
ring."  A  bequest  of  this  description  can  be  fulfilled  by  the  de- 
livery of  anything  of  the  same  kind.  (2  Mad.  Ch.  Pr.  7,  8. 
Toller,  301.) 

It  is  a  general  rule  that  no  legacy  is  to  be  held  specific  unless 
clearly  so  intended  ;  and  this  gives  rise  to  another  class,  having 
the  appearance  in  some  respects  of  specific  legacies,  and  partaking 
of  the  nature,  to  a  certain  extent,  of  a  general  legacy.  They  are 
styled  demonstrative  legacies  ;  as  where  a  sum  of  money  is  given 
out  of  a  particular  fund.  In  such  a  case  the  legacy  does  not  fol- 
low the  fate  of  the  particular  fund ;  and  thus  far  it  differs  from  a 
specific  legacy ;  but  it  is  considered  specific  as  to  the  legatee,  and 
therefore  does  not  at  common  law  abate  on  failure  of  assets. 
{Coleman  v.  Coleman,  2  Ves.jr.  160.) 

Legacies  may  again  be  divided  with  respect  to  their  enjoyment, 


GENERAL  AND  SPECIFIC  LEGACIES.  349 

into  vested  and  contingent ;  absolute  or  conditional  legacies. 
They  may  also  be  viewed  as  subject  to  other  incidents,  such  as  be- 
ing cumulative,  in  distinction  from  a  repetition  of  the  same 
legacy.  Specific  legacies  are  subject  to  ademption,  by  the  de- 
struction of  the  subject  matter  in  the  lifetime  of  the  testator.  All 
legacies  are  liable  to  lapse  on  certain  contingencies,  except  where 
the  statute  has  intervened  to  prevent  it.  They  are  subject  also 
to  the  equity  doctrine  of  election  and  satisfaction.  General  lega- 
cies are  sometimes  charged  upon  the  real  estate  of  the  testator, 
either  as  the  primary  or  auxiliary  fund  for  their  payment. 

The  jurisdiction  of  the  surrogate's  court  over  legacies  is  mainly, 
if  not  exclusively,  derived  from  the  statutes.  It  does  not  extend 
to  the  enforcement  of  legacies  charged  on  the  real  estate  of  the 
testator,  and  is,  in  other  respects,  less  comprehensive  than  that  of 
courts  of  equity,  now  possessed  by  the  supreme  court.  The  limits 
of  this  treatise  will  not  permit  a  full  discussion  of  the  whole  doctrine 
of  legacies.  We  can  only  give  a  brief  and  general  view  of  the 
subject. 

1.  Of  general  and  specific  legacies.  A  legacy  is  general,  when 
it  is  so  given  as  not  to  amount  to  a  bequest  of  a  particular  thing 
or  money  of  the  testator,  distinguished  from  all  others  of  the  same 
kind.  It  is  specific  when  it  is  a  bequest  of  a  specified  part  of  the 
testator's  personal  estate.  (  Tift  v.  Porter,  4  iSeld.  518.)  Accord- 
ingly, where  the  testator  owned  360  shares  of  Cayuga  county  bank 
stock,  and  he  bequeathed  240  shares  of  Cayuga  county  bank  stock 
to  one  legatee,  and  120  shares  to  another,  but  without  indicating 
that  the  shares  bequeathed  were  to  be  taken  from  those  which  he 
owned  at  the  time  of  his  death,  the  court  of  appeals  held  that  the 
legacies  were  general.     (Id.) 

The  presumption,  both  of  law  and  equity,  is  in  favor  of  general 
legacies.  To  establish  a  specific  legacy,  it  requires  a  clear  mani- 
festation of  the  testator's  intention.  The  court  leans  against  con- 
sidering legacies  specific  because  of  the  consequences.  (Ellis  v. 
Walker,  Ambler,  310.  Walton  v.  Walton,  7  J.  Ch.  R.  264. 
Tijft  v.  Porter,  supra.  Enders  v.  Enders,  2  Barb.  S.  C.  R. 
367.)  This  inclination,  says  Lord  Eldon,  has  been  indulged  to 
such  an  extent,  in  order  to  prevent  legacies  from  being  disap- 
pointed in  substance,  and  they  have  been  so  anxious  to  procure  the 


350  GENERAL  AND  SPECIFIC  LEGACIES. 

legatees  the  bounty  in  some  cases,  that  they  have  construed  words 
giving  the  specific  corpus,  as  a  direction  to  purchase  that  thing. 
{Sibley  v.  Perry,  7  Vcs.  530.) 

There  is  a  strongly  marked  distinction  between  general  and 
specific  legacies,  in  man}7  respects.  If  the  legacy  be  specific,  and 
the  testator  does  not  leave  among  his  effects  the  thing  bequeathed, 
the  legacy  fails  altogether  ;  and  the  executor  cannot  be  required 
to  make  it  good.  But  if  the  legacy  be  general,  and  the  thing 
given  is  not  found  in  the  possession  of  the  testator,  at  his  death, 
and  the  assets  are  sufficient  to  pay  debts  and  legacies,  it  is  the 
duty  of  the  executor  to  purchase  an  article  corresponding  with  the 
description  of  the  legacy. 

In  Evans  v.  Trip]),  6  Mad.  91,  the  testator  gave  a  sum  in 
stock  standing  in  his  name.  The  testator  had  no  stock,  either  at 
the  time  he  made  the  will  or  at  his  death.  The  vice  chancellor 
(Leach)  held  that  nothing  passed  by  the  will.  And  he  said,  "  A 
gift  of  my  grey  horse  will  pass  a  black  horse,  which  is  not  strictly 
grey,  if  it  be  found  to  have  been  the  testator's  intention  that  it 
should  pass  by  that  description  ;  but  if  the  testator  has  no  horse, 
the  executor  is  not  to  buy  a  grey  horse." 

A  bequest  of  a  sum  of  money  generally,  or  of  a  sum  in  govern- 
ment securities,  must  be  taken  as  a  legacy  of  quantity,  and  is, 
therefore,  a  general  legacy.  This  doctrine,  it  is  said,  prevails, 
notwithstanding  the  testator  may  have  a  greater,  or  the  exact 
quantity  of  the  specific  stock,  at  the  date  of  his  will.  {Bronsdon 
v.  Winter,  Ambler  59.)  In  Purse  v.  Snaplin,  1  Atk.  413,  the 
testator  bequeathed  £5000  south  sea  stock  to  A.  &  B.  each.  At 
the  time  of  making  his  will,  the  testator  had  only  £5000  south 
sea  stock.  It  was  held  that  the  legacy  was  general ;  and  the 
executor  was  consequently  decreed  to  transfer  the  £5000  stock  in 
moieties  to  A.  &.  B.,  and  to  purchase  £5000  more  of  the  same 
stock  to  be  divided  in  the  same  manner.  But  stock,  or  govern- 
ment securities,  may  be  specifically  bequeathed,  when  there  is  a 
clear  reference  to  the  corpus  of  the  fund.  Thus,  the  word  "my" 
preceding  the  word  stock,  or  annuities,  has  been  several  times 
adjudged  sufficient  to  render  the  legacy  specific ;  as  where  the 
bequest  is  of  "my" .capital  stock  of  £1000  in  the  India  company 
stock,  or  a  legacy  is   given  of  "  my"  stock,  or  in  "  my"  stock,  or 


GENERAL  AND  SPECIFIC  LEGACIES— ADEMPTION.        351 

part  of  <:  my"  stock.  (Sibley  v.  Perry,  7  Ves.  530.  Barton  v. 
Cooke,  5  id.  4G1.  Kirby  v.  Potter,  4  Ves.  750.)  On  this  princi- 
ple, Chancellor  Kent  held  that  a  bequest  in  these  words,  ':  I  give 
and  bequeath  to  my  nephew  all  my  right,  interest,  and  property 
in  thirty  shares  which  I  own  in  the  bank  of  the  United  States  of 
America,"  was  a  specific  legacy.  (  Walton  v.  Walton,  7  /.  Ch.  R. 
258.)  So  also  a  bequest  of  u  the  proceeds  of  a  bond  and  mortgage 
I  hold  against  S."  was  held  by  the  supreme  court  to  be  specific. 
(2  Barb.  S.  C.  R.  83.) 

Ademption  is  an  incident  of  a  specific  legacy.  If  a  debt  speci- 
fically bequeathed  be  received  by  the  testator,  the  legacy  is 
adeemed.  {Preston  on  Legacies,  325.)  This  rule  of  ademption 
does  not  apply  to  demonstrative  legacies.  With  regard  to  them, 
the  legacy  remains,  although  the  fund  for  its  payment  has  been 
called  in,  or  altered  by  the  testator  in  his  life  time.  Nor  does  it 
apply  to  general  pecuniary  legacies  ;  as  where  the  testator  be- 
queaths a  horse,  a  yoke  of  oxen,  or  other  article,  not  describing  it 
by  any  mark  so  as  to  distinguish  it  from  all  others  of  the  like 
nature.  In  such  a  case,  if  the  testator  does  not  possess  the  thing 
bequeathed,  and  leaves  sufficient  assets,  the  executor  must  pur- 
chase an  article  answering  the  description  of  the  will,  or  otherwise 
pay  its  value  to  the  legatee. 

A  distinction  was  formerly  made  between  a  voluntary  and  com- 
jmlsory  payment.  A  voluntary  payment  of  a  debt  specifically 
bequeathed,  was  considered  not  any  ademption,  since  the  payment 
did  not  create  any  alteration  of  the  testator's  intention  ;  nor  did  a 
compulsory  payment  of  itself  create  an  ademption,  as  it  might  be 
done  for  the  benefit  of  the  legatee.  {Preston  on  Legacies,  326.) 
But  modern  decisions  have  repudiated  this  distinction;-  and  it 
may  now  be  considered  as  established,  in  the  words  of  Lord  Thur- 
low,  in  Humphreys  v.  Humphreys,  (2  Cox,  185,)  that  "the 
only  rule  to  be  adhered  to  is,  to  see  whether  the  subject  of  the 
specific  bequest  remained  in  specie,  at  the  time  of  the  testator's 
death,  for  if  it  did  not,  then  there  must  be  an  end  of  the  bequest ; 
and  the  idea  of  discussing  what  were  the  particular  motives  and 
intentions  of  the  testator,  in  each  case,  in  destroying  the  subject 
of  the  bequest,  would  be  productive  of  endless  uncertainty  and  con- 


352  DEMONSTRATIVE  LEGACIES. 

fusion."  These  remarks  relate  to  a  case  where  the  testator,  by 
his  own  act,  destroys  the  subject  of  the  gift.  But  where  the  fund 
is  varied  or  differently  arranged,  by  operation  of  law,  but  its 
identity  not  lost,  the  legacy  will  not  be  adeemed.  Thus,  in  Walton 
v.  Walton,  supra,  where  the  shares  of  stock  in  the  old  United 
States  bank  were  specifically  bequeathed,  the  legacy  was  held  not 
to  be  adeemed  by  the  expiration  of  the  charter  of  the  bank,  and 
the  conveying  of  the  fund  to  trustees  for  distribution  to  the  parties 
entitled  to  it. 

In  Gardner  v.  Printup,  supra,  the  testator  bequeathed  speci- 
fically the  proceeds  of  a  bond  and  mortgage,  particularly  described. 
Previous  to  the  death  of  the  testator,  he  commenced  proceedings 
to  foreclose  the  mortgage,  which  resulted  in  the  sale  by  the  mort- 
gagor of  the  premises  to  other  parties,  who  paid  a  portion  of  the 
amount  of  the  purchase  money  to  the  testator,  which  was  endorsed 
on  the  original  mortgage,  and  gave  a  new  mortgage  to  the  testator 
on  the  same  premises  for  the  balance,  as  collateral  to  the  original 
mortgage,  which  was  still  held  by  the  testator.  It  was  held  that 
this  operated  only  as  an  ademption  pro  tanto  of  so  much  of  the 
legacy  as  was  received  by  the  testator  in  money,  but  that  the  new 
mortgage,  or  the  amount  due  thereon,  at  the  death  of  the  testator, 
passed  to  the  legatee  as  part  of  the  specific  legacy. 

To  constitute  an  ademption  of  a  specific  legacy,  the  disposition 
of  the  subject  must  be  absolute.  If,  therefore,  the  testator  pawns 
or  pledges  an  article  specifically  bequeathed,  and  dies  before  the 
right  of  redemption  has  expired,  the  legatee  has  a  right  to  require 
the  executor  to  redeem  the  thing  bequeathed,  and  deliver  it  to 
him.     {Per  Ld.  Thurlow,  2  Bro.  C.  C.  113.) 

A  bequest  to  S.  of  the  amount  of  his  bond  and  mortgage  to  the 
testator,  is  a  forgiveness  of  the  debt,  or  specific  legacy,  and  not  a 
pecuniary  legacy.     (Sholl  v.  Sholl,  5  Barb.  312.) 

A  demonstrative  legacy  is  a  general  or  pecuniary  legacy,  where 
a  particular  fund  is  pointed  out  by  the  will  for  the  payment  of  it. 
If  the  fund  fails,  such  a  legacy  is  to  be  made  good  out  of  the  gen- 
eral assets.  The  fund  is  designated  only  as  the  convenient  means 
by  which  to  discharge  it,  and  becomes  descriptive  of  the  amount 


LAPSE.  353 

or  value  of  the  gift.  (  Walton  v.  Walton,  7  John.  Ch.  R.  262. 
Enders  v.  Enders,  2  Barb.  S.  C.  R.  367.) 

Legacies  are  either  vested  or  contingent.  And  here  a  dis- 
tinction is  made  between  legacies  payable  out  of  real  or  personal 
estate,  or  out  of  both  funds. 

Legaiccs  are  primarily  payable  out  of  the  personal  estate, 
though  the  real  estate  be  charged  ;  and,  therefore,  it  is  proper 
first  to  consider  such  as  are  payable  out  of  the  personalty.  These 
legacies  are  vested,  by  the  assent  of  the  executor,  immediately  on 
the  testator's  death,  if  given  generally  ;  as  "  I  bequeath  to  A  one 
hundred  dollars."  A  legacy  is  said  to  be  contingent  where  the 
enjoyment  of  it  depends  on  the  happening  of  some  event.  If  the 
legacy  is  vested  in  the  legatee,  and  the  legatee  dies,  the  interest 
in  the  legacy  passes  to  his  personal  representatives.  But 
there  is  much  learning  in  the  books  on  the  subject  of  the  lapse,  or 
failing  of  a  legacy,  by  means  of  the  death  of  the  legatee  before  the 
testator ;  or  by  means  of  the  death  of  the  legatee  after  the  death 
of  the  testator,  but  before  the  happening  of  the  contingency  on 
which,  the  legacy  is  to  vest.  And  there  is  also  a  distinction  in 
this  respect,  between  legacies  charged  on  land  and  such  as  are 
payable  out  of  the  personalty,  or  out  of  a  mixed  fund  of  real  and 
personal  estate. 

It  is  proposed,  briefly,  to  notice  these  distinctions. 

The  first  class  of  cases  we  will  consider,  is  where  the  legacy 
lapses  by  the  death  of  the  legatee,  before  the  death  of  the  tes- 
tator. 

There  is  no  principle  better  established,  from  the  earliest  peri- 
od, both  in  the  ecclesiastical  courts  and  in  the  courts  of  equity, 
than  this,  to  wit,  that,  at  common  law,  unless  the  legatee  survives 
the  testator,  the  legacy  is  extinguished  ;  neither  can  the  executors 
or  administrators  of  the  legatee  demand  the  same.  (  Wcntwortli 's 
Ex'rs,  436.  2  Phill.  261.)  This  rule  was  modified  by  the  re- 
vised statutes  in  1830.  It  is  enacted  that  whenever  any  estate, 
real  or  personal,  shall  be  devised  or  bequeathed  to  a  child,  or  other 
descendent  of  the  testator,  and  such  legatee  or  devisee  shall  die 
during  the  lifetime  of  the  testator,  leaving  a  child  or  other  de- 
scendant, who  shall  survive  such  testator,  such  devise  or  legacy 
45 


354  LAPSE. 

shall  not  lapse,  but  the  property  so  devised  or  bequeathed  shall 
vest  in  the  surviving  child,  or  other  descendant  of  the  legatee  or 
devisee,  as  if  such  legatee  or  devisee  had  survived  the  testator, 
and  had  died  intestate.  (2  R.  S.  66,  §  52.  Bishop  v.  Bishop, 
4  Hill,  138.  Chrystie  v.  Phyfe,  22  Barb,  195.  Armstrong  v. 
Moran,  1  Bradf.  314.)  The  statute  prevents  a  lapse  only  in 
cases  where  the  testator  is  the  ancestor  of  the  legatee  or  devisee, 
and  where  the  deceased  legatee  or  devisee  leaves  a  child  or  other 
descendant,  in  esse,  at  the  death  of  the  testator,  in  whom  the  prop- 
erty devised  or  bequeathed  can  vest.  If  the  legatee  or  devisee 
is  not  a  lineal  descendant  of  the  testator,  or  if  the  testator  has  no 
lineal  descendants  of  his  own,  the  devise  or  legacy  is  subject  to 
all  the  rules,  with  respect  to  lapse,  which  have  been  established 
on  this  subject. 

The  consequences  of  a  lapse  may  always  be  prevented  by  the 
testator  by  a  suitable  provision  in  his  will.  If  he  directs,  in  his 
will,  that  in  case  the  legatee  or  devisee  should  die  before  the  vest- 
ing of  the  legacy  or  devise,  the  property  so  bequeathed  or  devised 
should  not  lapse,  but  should  go  to  some  other  person  therein 
named,  his  intention  could  be  carried  into  eifect.  {Perkins  v. 
Michlethwaite,  1  P.  Wm.  274.  Sibley  v.  Cook,  3  Atk.  572.) 
This  intention  of  the  testator  cannot  be  proved  by  evidence  dehors 
the  will,  but  must  be  gathered  from  an  examination  of  the  whole 
instrument.  Thus,  it  appears,  that  to  prevent  a  lapse  by  the  death 
of  the  legatee,  in  the  lifetime  of  the  testator,  two  circumstances 
must  concur,  to  wit,  first,  the  manifestation  of  an  intention  to  that 
effect  on  the  face  of  the  instrument,  and  second,  the  substitution 
of  a  person  capable  of  taking  instead  of  the  deceased  legatee. 
(See  form  of  clause  in  a  will  to  prevent  lapse,  Appendix,  No.  1.) 

If  a  legacy  be  given  to  two  persons  jointly,  and  one  of  them  die 
before  the  testator,  such  interest  will  not  lapse,  but  will  survive 
to  the  other  legatee.  {Gardner  v.  Printup,  2  Barb.  S.  C.  R. 
83,  89.) 

But  where  legacies  are  given  to  several  legatees  by  name,  as 
tenants  in  common,  to  be  divided  among  them  in  equal  parts,  if 
any  one  should  die  before  the  testator,  his  share  will  not  go  to  the 
survivors,  but  will  lapse.  (Bagicell  v.  Dry,  1  P.  Wm,  700. 
2  id.  488.)     It  is  otherwise  where  a  legacy  is  given  to  several  in- 


LAPSE.  355 

dividuals,  not  by  name,  but  in  a  class  ;  as  where  a  legacy  is  given 
to  the  children  of  A.  The  death  of  any  of  them  will  not  occasion 
a  lapse  of  his  share,  but  it  will  go  to  increase  the  fund,  and,  those 
of  the  described  class  will  take  the  whole.     (2  Bro.  C  C.  658.) 

It  is  an  established  rule,  that  if  a  legacy  be  given  to  A  for  life, 
remainder  over  to  B,  and  A  dies  before  the  testator,  the  remainder 
will  take  effect  on  the  testator's  death.  (Hardwick  v.  Thurston, 
4  Buss.  380.) 

The  second  class  of  cases  under  this  head,  is  where  the  legacy 
lapses  by  the  death  of  the  legatee  after  the  death  of  the  testator. 

The  general  rule  of  construction,  at  common  law,  is  that  where 
a  legacy  is  given,  without  specifying  any  time  of  payment,  it  is 
due  on  the  death  of  the  testator,  though  not  payable  until  one 
year  afterwards.  This  delay  of  a  year  was  for  the  convenience  of 
the  executor,  affording  him  time  to  ascertain  the  extent  of 
the  claims  against  the  estate,  and  the  condition  of  the  assets, 
and  was  never  considered  as  preventing  the  legacy  from  vest- 
ing. (2  Salk.  415.)  The  common  law  rule  of  giving  the  executor 
a  year  from  the  death  of  the  testator  for  this  purpose,  is  expressly 
enacted  by  the  revised  statutes,  with  this  difference,  however,  that 
by  the  statute  the  executor  or  administrator  is  prohibited  from 
paying  any  legacy  until  after  the  expiration  of  one  year  from  the 
date  of  his  letters  testamentary  or  of  administration,  unless  the 
same  are  directed  by  the  will  to  be  sooner  paid.  (2  R.  S.  90, 
§§  43  to  45.)  There  is  nothing  in  the  postponing  of  the  payment  of 
a  legacy  to  a  future  day,  incompatible  with  its  immediately  vesting 
in  the  legatee  on  the  death  of  the  testator.  (Collins  v.  Macpher- 
son,  2  Simons,  87.)  The  death,  therefore,  of  the  legatee  within 
the  year,  occasions  no  lapse  of  the  legacy,  and  the  interest  of  the 
legatee  is  transmitted  to  his  personal  representatives. 

But  where  the  future  time  of  payment  is  defined  in  the  will,  the 
legacy  will  be  vested  or  contingent,  according  as  upon  an  exami- 
nation of  the  whole  instrument,  it  appears  whether  the  testator 
meant  to  annex  the  time  to  the  payment  of  the  legacy,  or  to  the 
bequest  of  it.  It  resolves  itself,  therefore,  into  a  question  of  in- 
tention ;  to  ascertain  which,  the  courts  of  equity,  following  the 
practice  of  the  ecclesiastical  courts,  in  this  respect,  have  estab- 


356  LAPSE. 

lished  two  positive  rules  of  construction,  1st.  That  a  bequest  to  a 
person,  payable  or  to  be  paid,  at  any  certain  determinate  term, 
as  when  the  legatee  shall  arrive  at  the  age  of  twenty-one  years, 
or  be  married  or  the  like,  confers  on  him  a  vested  interest,  imme- 
diately on  the  testator's  death  ;  it  being  considered  as  debititm  in 
presenti,  solvendum  in  futuro,  and,  therefore,  transmissible  to  his 
executors  or  administrators.  (2  Fonb.  Eq.,  b.  IV,  part  1,  ch.  1, 
§  3.  Toller,  305,  171,  172.)  2d.  That  if  the  words  payable  or 
to  be  paid  are  ommitted,  and  the  legacy  is  given,  at  twenty-one, 
or  when,  or  if  the  legatee  shall  attain  the  age  of  twenty-one,  or 
if  he  shall  survive  B.,  or  the  like,  these  expressions  annex  the 
time  to  the  substance  of  the  legacy,  and  make  the  legatee's  right  to 
depend  on  the  happening  of  the  event  contemplated.  In  short,  they 
constitute  it  a  contingent  legacy.  The  attaining  twenty-one,  or 
surviving  B.,  is  a  condition  precedent,  the  performance  of  which 
is  necessary  to  vest  the  legacy.  And  consequently  if  the  legatee 
happens  to  die  before  that  period,  his  personal  representatives 
will  not  be  entitled  to  the  legacy.     {Preston  on  Legacies,  104. 

2  P.  Wms.  610  *o612.  Patterson  v.  Ellis,  11  Wend.  259,  671.) 
The  doctrine  with  its  qualifications  and  the  cases  by  which  it  is 
supported  will  be  found  stated  in  the  cases  above  cited. 

The  rule,  however,  is  subject  to  exceptions,  arising  from  the 
intention  of  the  testator.  Thus,  where  the  testator  gives  a  legacy 
to  a  person  at  a  future  period,  or  when,  or  if,  he  shall  arrive  at 
the  age  of  twenty-one  years,  or  directs  it  to  be  applied  for  his 
benefit,  the  courts  have  considered  this  disposition  of  the  interest, 
as  an  indication  of  the  testator's  intention,  that  the  legatee  shall 
at  all  events,  have  the  legacy,  and,  therefore,  have  held  the  legacy 
under  such  circumstances  to  be  vested.     {Fonereau  v.  Fonereau, 

3  Atk.  645.) 

We  will  now  notice  the  doctrine  of  the  lapsing  of  legacies  pay- 
able out  of  the  real  estate  of  the  testator. 

The  principle  applicable  to  a  bequest  out  of  the  "personal  estate, 
viz.  that  a  legacy  to  a  person  payable  at  a  future  time,  contains  a 
present  vested  interest,  as  debitum  in  presenti,  solvendum  in  fu- 
turo, does  not  hold,  generally  speaking,  in  regard  to  legacies  pay- 
able out  of  the  real  estate. 


LAPSE.  357 

The  reason  for  this  diversity  is  stated  in  the  books  to  be.  that 
the  rule  in  relation  to  legacies,  out  of  the  personal  estate,  was 
borrowed  from  the  civil  law,  in  which  a  bequest  to  be  paid  at  a 
future  time,  was  held  to  confer  a  present  right  to  the  legacy. 
And  anciently  the  ecclesiastical  courts  had  the  exclusive  jurisdic- 
tion of  legatory  matters  arising  on  personal  estates,  and  their  de- 
cisions were  regulated  by  the  civil  law.  When  the  courts  of 
equity  acquired  cognizance  of  this  class  of  legacies,  they  adopted, 
with  a  view  to  a  uniformity  of  decision,  the  rule  in  question  with 
regard  to  legacies.  But  legacies  payable  out  of  land  were  never  with- 
in the  cognizance  of  the  ecclesiastical  courts  ;  there  was  not,  there- 
fore, the  same  reason  for  adopting  the  rule  of  the  civil  law ;  and 
as  the  heir  is  the  special  favorite  of  the  courts  in  England,  they 
established  a  course  of  decisions  more  favorable  to  the  inherit- 
ance. 

This  rule,  however,  is  qualified  by  an  exception  a3  firmly  fixed 
as  the  rule  itself.  The  rule,  as  it  now  exists,  both  here  and  in 
England,  in  respect  to  the  vesting  of  legacies  payable  out  of  real 
estate,  is  thus  correctly  stated  by  V.  Chancellor  McCoun,  in 
Marsh  v.  Wheeler,  (2  Ed.  Ch.  Rep.  163,)  and  approved  by 
Chancellor  "Walworth  in  Harris  v.  Fly,  (7  Paige,  429,)  "  Where 
the  gift  is  immediate,  but  the  payment  is  postponed,  for  instance, 
until  the  legatee  attains  the  age  of  twenty-one  years,  or  marries, 
then  it  is  contingent,  and  will  fail  if  the  legatee  dies  before  the 
time  of  payment  arrives  ;  but  where  the  payment  is  postponed  in 
regard  to  the  convenience  of  the  person,  and  the  circumstances  of 
the  estate  charged  with  the  legacy,  and  not  on  account  of  the  age, 
circumstances,  or  condition  of  the  legatee,  in  such  a  case  it  will  be 
vested,  and  must  be  paid,  although  the  legatee  should  die  before 
the  day  of  payment."  The  same  doctrine  is  sustained  by  the 
court  of  appeals,  in  Sweet  v.  Chase,  2  Comstock,  72.  Birdsall  v. 
Hewlett,  1  Paige,  32,  #.  P. 

As  the  rule  and  its  exception  are  founded  on  the  supposed  in- 
tention of  the  testator,  it  will  be  controlled  by  a  direction  in  the 
will,  that  the  legacy  should  vest  at  the  death  of  the  testator. 
(  Wat  kins  v.  Cheek,  2  Sim.  $•  Stu.  199.) 

It  sometimes  happens  that  legacies  are  charged  on  a  mixed 
fund  of  realty  and  personalty.     In  such  a  case,  the  personalty, 


358  LEGACIES,  ABSOLUTE  OR  CONDITIONAL. 

unless  there  arc  special  directions  in  the  will  to  the  contrary,  is 
the  primary  fund.  So  far  as  that  fund  extends  to  pay,  the  case 
is  governed  by  the  same  rules  that  are  applicable  to  legacies  pay- 
able out  of  the  personal  estate  alone  ;  it  is  not  until  the  real  estate 
has  to  be  resorted  to,  that  the  case  is  governed  by  the  principles 
applicable  to  a  legacy  charged  on  the  land.  {Duke  of  Cliandos  v. 
Talbot,  2  P.  Wms.  613,  and  note.  Dodge  v.  Manning,  11 
Paige,  334.     Hoes  v.  Van  Hoesen,  1  Comstock,  120.) 

A  legacy,  therefore,  of  this  kind  is  of  a  mixed  character.  It 
may  sometimes  happen  that,  with  reference  to  one  fund,  the  legacy 
may  be  vested,  and,  as  to  another,  lapsed. 

Legacies,  we  have  said,  are  absolute  or  conditional. 

An  absolute  legacy  is  where  a  thing  of  a  personal  nature  is  be- 
queathed without  any  qualification  ;  as,  "  I  give  and  bequeath  to 
A.  one  hundred  dollars." 

A  conditional  legacy  is  defined  to  be  a  bequest  whose  existence 
depends  upon  the  happening  or  not  happening  of  some  uncertain 
event,  by  which  it  is  either  to  take  place,  or  be  defeated.  (1 
Roper  on  Legacies,  645.) 

Conditions  are  of  two  kinds :  conditions  precedent,  and  condi- 
tions subsequent. 

A  condition  precedent  is  where  some  given  event  must  happen, 
or  time  arrive,  before  the  vesting  of  the  legacy.  One  kind  of  con- 
ditions precedent  has  already  been  considered  under  the  head  of 
contingent  legacies ;  as.  where  a  legacy  is  given  to  A.  if  he  shall 
attain  the  age  of  twenty-one  years. 

The  word  ':  provided  "  is  an  appropriate  term  for  creating  a  con- 
dition precedent.  [Robertson  v.  Caw,  3  Barb.  S.  C.  R.  411.  S. 
C  on  appeal,  1  Seld.  125,  concurring  with  S.  C.  on  this  point.) 
Thus,  in  that  case/the  will  gave  "  to  the  associate  reformed  church 
of  Broadalbin  five  hundred  dollars,  provided  the  Rev.  David 
Caw  continues  to  be  their  pastor  for  seven  years  to  come,  but  if 
not,  then  it  must  be  paid  over  to  said  David  Caw  with  interest." 
It  was  held  by  the  court  of  appeals  that  the  condition  annexed  to 
the  bequest  was  valid ;  and  (the  pastoral  relations  between  said 
Caw  and  said  church  having  been  dissolved  by  mutual  consent, 


CONDITIONAL  LEGACY.  359 

within  the  seven  years,)  that  no  interest  whatever  vested  in  the 
church,  but  that  said  Caw  was  entitled  to  the  legacy. 

A  condition  subsequent  is  where  a  legacy  already  vested,  may 
be  defeated  by  the  happening  or  not  happening  of  some  future 
event,  as  where  a  legacy  is  given  A  to  be  paid  at  the  age  of 
twenty-one,  and,  if  he  dies  before  that  period,  then  to  B.  The 
legacy  to  A.  is  vested,  though  payable  at  a  future  time,  and  the 
limitation  over  to  B  is  on  condition  subsequent ;  to  wit,  the  death 
of  A  before  he  arrives  at  the  age  of  twenty-one.  (Nicholls  v. 
Osbom,  2  P.  Wms.  419.) 

No  precise  form  of  words  is  necessary  in  order  to  create  a  con- 
dition in  a  will.  Lord  Talbot  very  truly  said,  "  There  are  no  tech- 
nical words  to  distinguish  conditions  precedent  and  subsequent ; 
but  the  same  words  may  indifferently  make  either,  according  to  the 
intent  of  the  party  who  creates  them."  (Cases  temp.  Talbot, 
196.) 

Conditions  are  void  when  they  are  repugnant  to  the  bequest, 
illegal,  or  against  public  policy.  Bac.  Abridg.  title  Condition, 
K.  and  L.)  In  such  a  case,  the  legacy  is  under  certain  circum- 
stances good,  the  condition  being  a  nullity  or  disregarded  ;  and, 
under  other  circumstances,  both  the  legacy  and  condition  are  void. 

Conditions  are  said  to  be  in  terrorum  only,  where  there  is  no 
bequest  over,  on  breach  of  the  condition ;  as  if  the  testator  be- 
queaths to  A  one  hundred  dollars,  and  directs  that  if  he  disputes 
the  will,  or  the  validity  of  it,  the  legacy  shall  fail.  The  legacy  in 
this  case  vests  in  A  on  the  death  of  the  testator ;  but,  as  there  is 
no  subsequent  disposition  of  it,  on  failure  of  the  condition,  it  is 
presumed  the  testator  intended  the  legatee  should  have  it,  at  all 
events.  But  if  the  will  contains  a  particular  bequest  over  of  the 
legacy  to  some  other  person,  on  the  failure  of  A  to  perform  the 
condition,  the  limitation  over  is  good,  and  will  take  effect,  on  A's 
failure  to  perform.     (Cleaver  v.  Spurling,  2  P.  Wms.  528.) 

If  a  condition  precedent  annexed  to  a  bequest  is  against  good 
morals ;  as  a  legacy  to  a  daughter,  if  she  lived  apart  from  her 
husband,  the  condition  is  void,  and  the  legacy  simple  and  pure. 
{Cooper  v.  Remsen,  5  J.  Ch.  R.  462.)  This  principle  is  bor- 
rowed from  the  civil  law.  But  if  the  condition  be  to  do  an  act, 
malum  in  se,  as  if  a  legacy  be  given  to  A,  provided  he  kills  B, 


360  LEGACY  TO  EXECUTOES. 

burns  a  house,  or  the  like,  both  the  legacy  and  condition  are  void, 
as  well  by  the  civil  as  the  common  law.  (Swin.  pt.  4,  §  6,  pi.  16.) 
But  a  legacy  by  a  father  to  his  daughter,  who,  at  the  date  of 
the  will,  was  living  separate  from  her  husband,  in  consequence  of 
domestic  difficulties,  expressed  to  be  during  her  separation  from 
her  said  husband,  is  a  charitable  and  humane  provision.  To 
entitle  the  legatee,  however,  to  this  bequest,  she  must  show 
that  the  separation  was  not  voluntary  on  her  part,  or  occasioned  by  a 
renunciation  of  her  conjugal  duties,  and  that  the  separation  sub- 
sisted at  the  death  of  the  testator.  A  separation  arising  from 
the  fault  of  the  legatee,  or  by  the  death  of  her  husband,  does  not 
satisfy  the  meaning  of  the  testator.  (Cooper  v.  Reinsert,  3  /.  Ch. 
R.  382.     S.  C.  5  id.  459.) 

Under  this  head  of  conditional  legacies  may  be  classed  lega- 
cies to  executors. 

It  is  a  presumption  that  a  legacy  to  a  person  appointed  executor 
is  given  to  him  in  that  character,  and  it  is  for  him  to  show  some- 
thing, in  the  nature  of  the  legacy,  or  other  circumstances  arising 
in  the  will,  to  repel  that  presumption.  (Dix  v.  Reed,  1  Sim.  <fy* 
Slu.2Sl.)  A  legacy  of  this  nature  is  a  conditional  legacy,  and 
the  right  of  the  legatee  to  receive  it  depends  on  his  assumption 
of  the  office. 

It  is  not  necessary,  in  order  to  create  the  legacy  a  conditional 
one,  that  it  should  be  expressed  to  be  for  care  or  pains,  or  not. 
It  is  enough,  according  to  Lord  Alvanly  in  Harrison  v.  Rowley, 
4  Ves.  216,  that  it  is  given  to  him  as  executor. 

But  if  there  is  no  express  condition  stated,  and  the  motive  for 
the  legacy  is  set  forth  in  the  will,  that  it  is  bequeathed  as  a 
mark  of  regard,  or  by  reason  of  relationship  of  the  legatee  to  the 
testator,  the  legacy  is  pure  and  not  conditional.  (Dix  v.  Reed, 
supra.)  No  doubt,  a  testator  may  make  a  bequest  to  an  executor 
in  such  terms,  that  the  legacy  will  vest,  though  the  legatee  re- 
nounces the  office  of  executor.  In  such  cases  the  language  of  the 
will  should  be  unequivocal.  In  Dix  v.  Reed,  supra,  the  testator 
bequeathed  to  two  of  his  executors  by  name,  a  legacy  upon  the 
express  condition  of  accepting  the  trust.  After  bequeathing  va- 
rious other  legacies  he  proceeds  thus,  "  I  give  unto  my  cousin, 
T.'  K.  the  sum  of  £50;  whom  I  appoint  as  joint  executor  in  trust 


LEGACY  TO  EXECUTORS.  361 

in  this  my  will."  T.  K.  did  not  accept  the  trust  but  renounced, 
and  the  other  executors  proved  the  will.  The  question  was  wheth- 
er T.  K.  was  entitled  to  his  legacy,  and  it  was  held  that  he  was. 
The  expressing  a  condition  in  the  one  case,  and  omitting  it  in  the 
other,  afforded  a  presumption  that  the  different  legacies  proceeded 
from  different  motives.  Besides,  describing  T.  K.  as  his  cousin, 
afforded  some  evidence  that  the  relationship  was  the  inducement 
for  the  legacy. 

So  where  several  executors  were  appointed,  and  among  others 
the  testator's  "  friend  and  partner,"  to  whom  he  gave  legacies  to  a 
large  amount,  so  that  he  was  entitled  under  the  will  to  much 
greater  benefits  than  any  of  the  other  executors  ;  this  circum- 
stance was  held  sufficient  to  rebut  the  presumption  that  the  legacy 
was  given  in  contemplation  of  the  character  of  executor  alone. 
Gifts  to  persons  simply  in  their  characters  of  executors,  would 
naturally  be  equal,  says  the  vice  chancellor,  because  the  trouble 
is  equal  to  all.     {Cocker ell  v.  Barber,  2  Rass.  Ch.  R.  585.) 

"With  regard  to  what  will  be  a  sufficient  manifestation  of  an  in- 
tention to  accept  the  office  of  executor,  so  as  to  entitle  the  person- 
al representatives  of  the  legatee  to  the  legacy,  in  case  the  legatee 
should  die  before  payment,  proving  the  will,  with  the  bona  fide 
intention  to  execute  it,  is  sufficient  to  vest  the  legacy,  though  the 
executor  die  before  any  thing  further  be  done.  If  the  executor 
renounces  the  office  altogether,  or  proves  the  will  only,  to  entitle 
himself  to  the  legacy,  and  then  gives  up  the  trust,  he  does  not 
perform  the  condition,  and  is  not  entitled  to  the  legacy. 

In  Harrison  v.  Rowley,  4  Ves.  212,  the  executor  died  before 
probate  ;  but  he  had  concurred  with  the  other  executors  in  giving 
directions  for  the  funeral,  and  in  paying  certain  sums  for  burial  fees, 
for  making  the  coffin  and  opening  the  vault,  and  there  was  no  un- 
reasonable delay  in  proving  the  will.  It  was  held  that  the  legacy 
vested,  and  that  the  personal  representatives  of  the  deceased  ex- 
ecutor were  entitled  thereto. 

In  general  it  is  the  duty  of  an  executor  to  whom  a  legacy  is 
given  for  care  and  pains  to  act  promptly,  and  while  any  unneces- 
sary delay  of  the  legatee  in  accepting  the  trust,  may  be  laid  hold 
of  by  the  court  to  deprive  him  wholly  of  the  legacy,  yet  it  seems 
46 


3(32  CUMULATIVE  LEGACIES. 

if  the  legatee  finally  accepts,  he  may  be  allowed  such  portion  of 
the  legacy  as  his  services  bear  to  the  whole  duty  imposed  upon 
him  by  the  will,  as  the  inducement  for  giving  the  legacy.  (Morris 
v.  Kent,  2  Edw.  V.  Ch.  R.  174.) 

Sometimes  a  question  arises  under  a  will,  whether  in  case  there 
be  two  legacies  of  the  same  thing  or  amount,  to  the  same  indi- 
vidual, the  latter  shall  be  treated  as  cumulative,  or  only  a  repeti- 
tion of  the  first  legacy.  Where  the  legacies  are  cumulative  the 
legtaee  takes  both ;  but  if  the  latter  is  a  mere  repetition  of  the 
first,  being  the  same  thing  given  twice,  the  legatee  takes  but  one. 
The  latter  is  usually,  in  such  a  case,  a  substitution  for  the  former. 
The  whole  doctrine  on  this  subject  was  well  reviewed,  and  the 
cases  collected  by  the  supreme  court  in  De  Witt  v.  Yates,  10 
John.  R.  156. 

In  deciding  the  question  whether  a  legacy  is  cumulative,  or  is 
merely  a  repetition,  the  intention  of  the  testator  is  the  rule  of  con- 
struction. This  intention  must  be  ascertained  according  to  the 
rules  of  law,  and  the  cases  in  which  the  question  arises  are  usually 
classed  by  the  writers  as  follows  : 

1st.  Where  there  is  no  evidence  of  intention,  either  internal  or 
extrinsic,  one  way  or  the  other.  2d.  Where  there  is  internal  evi- 
dence ;  and  3d.  where  there  is  extrinsic  evidence. 

1st.  Under  the  first  head,  to  wit,  where  there  is  no  evidence  of 
intention,  internal  or  extrinsic,  there  are  four  positions  laid  down 
by  the  elementary  writers  and  supported  by  adjudged  cases. 
They  are  as  follows  : 

1.  Where  the  same  specific  thing  is  bequeathed  twice  to  the 
same  legatee,  either  in  the  same  will,  or  in  the  will  and  again  in 
a  codicil,  in  that  case,  he  can  claim  the  benefit  only  of  one  legacy, 
because  it  could  be  given  no  more  than  once.  (Toller,  335. 
De  Witt  v.  Yates,  supra.)  2.  Where  the  like  quantity  is  be- 
queathed to  him  twice,  by  one  and  the  same  instrument,  the  lega- 
tee is   entitled  to  one  legacy  only.     (1  P.  Wms.  424,  note  1.) 

3.  Where  the  bequest  is  of Unequal  quantities  in  the  same  instru- 
ment, the  one  is  not  merged  in  the  other,  and  the  legatee  is  entitled 
to  both,  the  one  being  cumulative  to,  or  in  addition  to  the  other. 

4.  And  lastly,  where  the  bequest  is  of  equal  or  unequal  quantities, 


ELECTION— SATISFACTION.  363 

bequeathed  in  different  instruments,  the  legatee  shall  take  both, 
the  legacies  being  cumulative.  {Masters  v.  Masters,  1  P.  Wms. 
424.) 

2.  Under  the  second  head,  to  wit,  where  there  is  internal  evi- 
dence, it  may  be  observed  that  the  second  legacy  may  be  so  ex- 
pressed, or  the  other  circumstances  may  be  such,  as  to  remove  all 
doubt  on  the  subject.  Thus,  where  a  later  codicil  appears  to  be 
merely  a  copy  of  a  former,  with  the  addition  of  a  single  legacy,  or 
where  both  legacies  are  given  for  the  same  cause,  they  are  not 
cumulative.  The  intention  of  the  testator,  whether  he  meant  a 
duplication  of  the  legacy,  may  be  inferred  from  slight  circumstan- 
ces.    {Masters  v.  Masters,  supra-) 

3.  Under  the  third  head,  to  wit,  where  there  is  extrinsic  evi- 
dence, it  may  be  remarked  that,  although  parol  evidence  is  inad- 
missible against  the  expressed  effect  of  a  written  instrument,  it  is, 
nevertheless,  proper  to  show  the  circumstances  and  situation  of 
the  testator  at  different  periods.  (Hurst  v.  Beach,  5  Mad.  Rep. 
351.)  Hence,  if  a  testator,  after  making  his  will,  and  before  the 
execution  of  a  codicil,  has  received  an  additional  estate,  it  may  be 
proved  as  affording  evidence  that  he  intended,  by  a  legacy  in  the 
codicil,  an  additional  bounty  to  the  legatee.  (Masters  v.  Mas- 
ters, supra.) 

It  sometimes  happens  that  a  devise  or  legacy  is  given  to  a 
widow  in  lieu  of  dower,  and  this  gives  occasion  to  examine  the 
doctrine  of  election,  so  far  as  it  relates  to  testamentary  matters. 

Every  devise  or  bequest  in  a  will  imports  a  bounty,  and,  there- 
fore cannot,  in  general,  be  averred  to  be  given  in  satisfaction  for 
that  to  which  the  devisee  or  legatee  is  by  law  entitled.  Upon 
this  principle,  a  devise  cannot  be  averred  to  be  in  satisfaction  of 
dower,  unless  it  be  so  expressed  in  the  will.  ( Van  Orden  v.  Van 
Orden,  10  John.  30.  1  Cruise  Dig.  180,  ch.  4,  tit.  Dower.  Lash- 
er v.  Lasher,  13  Barb.  106.) 

The  doctrine  of  election  in  this  state  most  frequently  arises  out 
of  devises  and  legacies,  in  which  one  party  claims  that  such 
devise  or  legacy  is  in  lieu  of  dower,  and  the  other  insists  on  re- 
taining both.  If  the  legacy  or  devise  be  in  express  terms,  in  lieu 
of  dower,  the  widow  is  doubtless  put  to  her  election,  for  she  can- 


g64  ELECTION— SATISFACTION. 

not  take  both.  The  revised  statutes  have  made  full  provision  on 
this  subject  in  affirmance  of  the  common  law.  (1  R.  S.  741.) 
The  full  consideration  of  this  branch  of  the  subject  belongs  to 
treatises  on  dower. 

It  is  in  cases  where  the  legacy  or  devise  is  not  in  express  terms 
declared  to  be  in  lieu  of  dower,  that  there  is  any  room  for 
argument  or  doubt.  As  the  right  to  dower  is  a  legal  right,  the 
wife  cannot  be  deprived  of  it  by  a  testamentary  provision  in  her 
favor,  so  as  to  put  her  to  an  election,  unless  the  testator  has  man- 
ifested his  intention  to  deprive  her  of  dower,  either  by  express 
words  or  necessary  implication.  ( Willard's  Eq.  Juris.  547. 
Fuller  v.  Yates,  8  Paige,  328.  Adsit  v.  Adsit,  2  John  Ch.  R. 
451.  Eawley  v.  James,  5  Paige,  318.  Wood  v.  Wood,  id.  59G. 
Sandford  v.  Jackson,  10  id.  2(36.)  The  cases  go  so  far  as  to 
show  that  the  claim  of  dower  must  be  inconsistent  with  the  will, 
or  repugnant  to  its  dispositions,  or  some  of  them,  before  we  can 
deduce  an  implied  intention  to  bar  dower.  In  short,  the  claim 
cannot  be  resisted  by  implication,  unless  the  allowance  of  it 
would  disturb  or  disappoint  the  will.     (See  same  cases.) 

The  principles  applicable  to  baring  dower  by  the  acceptance  of 
a  testamentary  provision  in  lieu  of  it,  may  be  extended  to  baring 
the  widow's  claim  to  exempt  property  in  the  like  manner.  It  has 
been  seen  already,  that  there  are  certain  articles  exempt  by  law 
in  favor  of  the  widow  and  minor  children.  These  cannot  be  be- 
queathed away  by  the  testator,  or  taken  to  satisfy  the  claims  of 
creditors.  They  are  sacredly  devoted  to  the  humane  purpose  of 
alleviating  the  calamities  of  widowhood  and  orphanage.  Suppose 
the  testator  bequeaths  one  cow  to  his  wife,  without  expressing  it  to 
be  in  lieu  of  the  one  belonging  to  her  by  law,  as  the  widow,  and  the 
testator  dies  possessed  of  several  cows,  the  question  is  often  asked, 
is  the  widow,  in  such  a  case,  entitled  to  the  cow  bequeathed  to 
her,  and  also  the  one  exempted  in  her  favor  by  law  1  In  my  judg- 
ment, she  is  entitled  to  both.  The  one  she  receives  as  a  bounty 
from  her  husband,  and  the  other  by  force  of  the  law.  It  stands 
on  the  same  footing  as  her  claim  to  dower,  and  may  be  barred  in 
the  same  way.  In  each  case,  the  statutory  provision  in  favor  of 
the  widow  is  beyond  the  reach  of  the  testator,  through  the  means 


LEGACY  TO  CREDITOR.  365 

of  his  will,  against  her  consent ;  and  in  each  her  right  is  para- 
mount to  that  of  creditors,  or  the  kindred  of  the  husband. 

The  testator  may,  however,  annex  a  condition  to  the  bequest, 
that  it  shall  be  in  lieu  of  the  articles  exempt  by  law  ;  in  which 
case  she  would  be  put  to  her  election  between  the  exempt  articles 
and  the  bequest.  If  the  testator  left  but  one  cow,  and  bequeathed 
one  cow  to  his  wife  in  general  terms,  she  would  be  entitled  to  the 
one  he  left,  under  the  statute  ;  and  whether  she  would  be  entitled 
to  call  on  the  executors  to  purchase  another  to  answer  the  bequest, 
would  depend  on  other  parts  of  the  will  and  the  state  of  the  assets. 
If  the  cow  was  so  described  in  the  will  as  to  indicate  that  the  par- 
ticular cow  he  owned  at  his  death,  was  the  one  intended  by  the 
will,  the  executors  would  not  be  required  to  purchase  another,  but 
the  widow  would  take  the  only  cow,  under  the  statute.  It  would 
be  analogous  to  a  will  merely  directing  that  his  wife  should  have 
what  the  law  gives  her,  in  which  case  she  takes  nothing  under  the 
will. 

Section  II. 
Of  the  effect  of  legacies  on  the  relation  of  debtor'  and  creditor. 

4 

1.  Of  legacies  to  a  creditor  in  satisfaction  of  a  debt  due  by  the 
testator  to  the  legatee.  It  was  said  by  the  supreme  court,  in 
Williams  v.  Crary,  (5  Cowen,  370,)  that  although  it  is  a  general 
rule  that  a  legacy  given  by  a  debtor  to  his  creditor,  which  is  equal 
to  or  greater  than  the  debt,  shall  be  considered  as  a  satisfaction  of 
it ;  yet,  where  there  are  any  circumstances  in  the  case  to  repel 
the  presumption  that  such  was  the  intention  of  the  testator,  courts 
have  always  seized  upon  them  to  prevent  the  application  of  the 
rule.  It  has  never  been  applied  to  the  case  of  a  debt  existing  in 
an  open  and  unliquidated  account ;  because  the  testator,  in  such  a 
case,  is  not  supposed  to  know  how  the  balance  stands,  and  wheth- 
er the  legatee  is  a  creditor  or  not.  {See  the  same  case,  8  Cowen, 
246,  and  4  Wend.  443.) 

The  subject  was  very  fully  examined  by  the  chief  justice,  in 
4  Wendell,  supra,  and  the  exceptions  to  the  rule  stated.  An 
attentive  examination  of  that  case,  and  those  cited  in  the  discus- 
sion, enable  us  to  state  the  following  circumstances  as  sufficient 


3(36  LEGACY  TO  DEBTOR. 

to  rebut  the  presumption  that  the  legacy  was  intended  as  a  pay- 
ment  of  a  debt,  and  showing  that  it  was  intended  as  a  bounty. 

1.  A  legacy  is  never  deemed  a  satisfaction  of  debts  contracted 
after  the  date  of  the  will.  2.  It  is  not  considered  as  a  payment 
when  the  will  contains  an  express  direction  that  the  debts  and 
legacies  shall  be  paid,  as  "  after  all  my  debts  and  legacies  are  paid 
then  I  <nve,"  or  words  of  like  import.  3.  Nor  is  a  satisfaction  of 
a  preexisting  debt  occasioned  by  a  legacy  bequeathed  for  a  differ- 
ent purpose,  as  where  the  particular  purpose  or  motive  for  the  gift 
is  stated,  and  the  debt  not  mentioned  ;  as  where  the  testator  be- 
queaths a  sum  of  money,  or  other  thing,  to  the  legatee  as  a  token 
of  regard,  or  from  ancient  friendship,  or  from  relationship  and  the 
like.  4.  Where  the  legacy  is  contingent  and  uncertain,  or  payable  at 
a  future  time,  or  upon  condition,  it  is  not  a  satisfaction,  and  the 
legatee  is  entitled  both  to  the  debt  and  legacy.  5.  If  the  legacy 
is  less  than  the  debt,  or  the  debt  is  unliquidated,  or  in  negotiable 
paper,  or  in  a  current  account,  the  legacy  does  not  impair  the 
debt.  6.  Where  the  legacy  is  of  a  different  nature  from  the  debt, 
as  where  the  testator  is  indebted  by  bond  and  bequeaths  an  in- 
terest in  land.  7.  A  specific  legacy,  however  valuable  the  bequest 
is  never  a  satisfaction  unless  so  expressly  declared  in  the  will,  and 
so  accepted  by  the  legatee. 

In  all  cases  where  the  legacy  does  not  operate  as  a  payment  or 
satisfaction  of  the  debt,  the  legatee  is  entitled  both  to  the  debt  and 
legacy.  And  where  the  property  is  sufficient  to  satisfy  all,  the 
testator  may  be  both  just  and  generous.  But  where  there  is  a  de- 
ficiency of  assets  there  is  a  stronger  reason  for  holding  the  legacy 
a  satisfaction,  and  accordingly  it  is  laid  down  by  respectable  au- 
thority, that  it  shall  in  all  such  cases  be  deemed  a  satisfaction. 
{Toller,  337.) 

A  bequest  of  a  debt  to  a  debtor  is  no  more  than  a  release  by 
will.  It  will  not  take  effect  in  case  there  is  a  deficiency  of  assets 
for  the  payment  of  debts  ;  because  the  debt  itself  is  assets  in  the 
hands  of  the  executor,  and  the  legacy  cannot  operate  without  his 
assent.     {Rider  v.  Wager,  2  P.  Wms.  331,  332.) 

2.  Of  legacies  by  a  creditor  to  his  debtor.  At  common  law 
the  appointing  of  a  debtor  executor  operated  as  a  release  or  extin- 


LEGACY  TO  DEBTOR.  367 

guishment  of  the  debt.  (  WentwortlCs  Ex'rs,  73.)  The  principle 
was  that  a  debt  is  merely  a  right  to  recover  the  amount  by  way  of 
action,  and  as  an  executor  could  not  maintain  an  action  against 
himself,  his  appointment  to  that  effect  by  his  creditor,  supended 
the  action  for  the  debt.  And  where  a  personal  action  was  once 
suspended  by  the  voluntary  action  of  the  party  entitled  to  it,  it 
was  forever  gone.     (Id.  and  Co.  Litt.  264,  b.) 

The  rule  was  the  same  where  a  creditor  appointed  one  of  several 
debtors,  executor ;  for  they  could  not  sue  without  making  him  who 
is  the  debtor  plaintiff,  which  could  not  be  against  himself.  (  Went- 
wortJCs  Ex:rs,  74,  75.)  This  principle,  that  making  the  debtor 
executor  discharged  the  debt,  was  held  to  apply  only  in  cases  where 
there  was  a  sufficiency  of  assets  to  pay  all  the  debts,  without  re- 
sorting to  the  debt  thus  released.  But  where  there,  was  such 
deficiency  at  common  law,  a  court  of  equity  held  the  debtor  exec- 
utor liable  to  pay..  (Freakley  v.  Fox,  9  B.  #•  C.  134,  per  Lord 
Tenterden,  C.  J.)  And,  indeed,  the  presumption  of  a  discharge 
was  allowed  to  be  repelled  by  express  terms,  or  by  implication 
from  the  contents  of  the  will,  as  by  a  specific  legacy  to  the  exec- 
utor, or  of  part  of  the  debt  to  another,  or  of  the  residue  among 
several  executors ;  or  if  the  executor  be  a  mere  trustee  of  the 
whole  estate,  or  the  debt  arises  in  respect  of  the  real  estate  in 
favor  of  the  heir.  (  WentivortNs  Ex'rs,  74,  note  and  cases. 
Stagg  v.  Beekman,  2  Edw.  V.  Ch.  R.  89.  Berry  v.  Usher, 
11  Ves.  87.     Fox  v.  Fox,  1  Atk.  463.) 

In  this  state,  the  legal  effect  of  making  a  debtor  executor  is 
changed  from  what  it  was  at  common  law,  and  a  rule  more  con- 
sonant to  equity  is  adopted.  Thus  it  is  enacted,  that  the  making 
of  any  person  executor  in  a  will  shall  not  operate  as  a  discharge 
or  bequest  of  any  just  claim,  which  the  testator  had  against  such 
executor,  but  such  claim  shall  be  included  among  the  credits  and 
effects  of  the  deceased  in  the  inventory,  and  such  executor  shall 
be  liable  for  the  same,  as  for  so  much  money  in  his  hands  at  the 
time  such  debt  or  demand  becomes  due ;  and  he  shall  apply  and 
distribute  the  same  in  the  payment  of  debts  and  legacies,  and 
among  the  next  of  kin,  as  part  of  the  personal  estate  of  the  de- 
ceased.    (2  R.  S.  84,  §  13.) 

The  subsequent  section  provides  that  the  discharge  or  bequest 


368  WH0  MAY  BE  A  LEGATEE. 

in  a  will  of  any  debt  or  demand  of  the  testator,  against  any  exec- 
utor named  in  Lis  will,  or  against  any  other  person,  shall  not  be 
valid  as  against  the  creditors  of  the  deceased ;  but  shall  be  con- 
strued only  as  a  specific  bequest  of  such  debt  or  demand.  It  is  to 
be  included  in  the  inventory,  as  has  been  before  stated,  and  applied 
in  the  payment  of  debts.  If,  however,  there  are  assets  enough  to 
pay  debts  without  it,  it  is  treated  as  a  specific  bequest  to  the  ex- 
ecutor, and  is  to  be  paid  in  the  same  manner  and  in  like  propor- 
tion as  legacies  of  that  kind. 

At  common  law,  the  appointing  of  a  creditor  of  the  testator  ex- 
ecutor, conferred  upon  him  the  power  of  paying  himself  first,  if  his 
debt  was  by  specialty  or  of  record.  (  WentwortKs  Ex'rs,  76.)  This 
right  of  retainer,  as  it  was  called,  we  have  seen  is  abolished  in  this 
state.  (2  R.  S.  88,  §  33.)  The  policy  of  the  law  is  to  put  all 
creditors  of  the  same  class  on  an  equality,  and  to  permit  no  debt 
or  claim  to  be  satisfied,  when  belonging  to  an  executor  or  adminis- 
trator until  it  shall  have  been  allowed  by  the  surrogate.  (  Wil- 
liams v.   Purdy,  6  Paige,  166.     Smith  v.  Kearney,  2  Barb. 

Ch.  R.  533.     Treat  v.  Fortune,  2  Bradf  116.) 

>\ 

Section  III. 

Of  the  "person  capable  of  being  a  legatee,  and  of  certain  rides 
of  construction,  not  only  of  the  will,  but  with  regard  to  the 
thing  bequeathed,  and  the  person  to  whom  it  is  bequeathed. 

I.  It  may  be  remarked,  in  general,  that  all  persons  are  capable 
of  being  legatees,  with  some  special  exceptions.  The  case  of  sub- 
scribing witnesses  to  a  will,  has  been  considered  in  a  former  part  of 
this  treatise.  A  bequest  to  them  is  void  if  the  will  cannot  be 
proved  without  them.  (2  R.  S.  65,  §  50.  1  id.  719.  Caw  v. 
Robertson,  1  Seld.  125.) 

With  regard  to  a  devise  of  real  estate,  it  is  enacted  that  such 
devise  may  be  made  to  every  person  capable,  by  law,  of  holding 
real  estate  ;  but  no  devise  to  a  corporation  shall  be  valid  unless 
such  corporation  is  expressly  authorized  by  its  charter,  or  by 
statute,  to  take  by  devise.     (2  R.  S.  57,  §  3.) 

To  constitute  a  valid  legacy  or  devise,  there  must  be  a  person, 
natural   or   artificial,   capable   of  taking   under   the   will,     {See 


CONSTRUCTION  OF  WILLS.  369 

9  Cranch,  292.)  A  mere  society  or  association  of  individuals, 
not  incorporated,  is  incapable  of  being  a  legatee  or  devisee,  un- 
less, indeed,  the  case  falls  under  the  denomination  of  charitable 
uses.  (See  Willard's  Eq.  Juris.  5G9  to  598.  Williams  v. 
Williams,  4  Seld.  524,  where  the  principal  cases  on  the  subject 
of  charities  are  collected  and  revieived.) 

2.  As  to  construction  of  wills,  generally.  There  are  some 
rules  of  construction  applicable  to  wills,  which  have  been  adopted 
as  elementary  principles.  1.  The  intention  of  the  testator  must 
control,  if  it  is  not  inconsistent  with  the  rules  of  law.  This  in- 
tention must  be  collected  from  the  will  itself,  and  from  the  whole 
will ;  and  parol  evidence  is  inadmissible  to  explain,  vary,  or  en- 
large the  words  of  it,  except  in  case  of  a  latent  ambiguity.  (Co- 
ve nhov  en  v.  Shuler,  2  Paige,  122.  Ralhbone  v.  Dyckman,  3  id. 
26.  Mann  v.  Mann,  14  John.  1.  S.  C,  1  John.  Ch.  Rep.  231. 
20  Wend.  469.)  2.  No  particular  words  are  necessary  to  pass 
an  estate,  but  any  words  that  show  the  intention  of  the  testator 
are  sufficient.  The  language  of  a  will  should  be  construed  ac- 
cording to  its  primary  and  ordinary  meaning,  unless  the  testator 
has  manifested  an  intention,  in  the  will  itself,  to  give  it  a  different 
signification.  (Hone  v.  Van  Schaick,  3  Comst.  538.  &  C, 
3  Barb.  Ch.  R.  488.  Matter  of  Hallett,  8  Paige,  375.  Cromer 
v.  Pinckney,  3  Barb.  Ch.  R.  466.)  3.  The  situation  of  the  testa- 
tor's family,  and  collateral  circumstances,  may  be  considered  in 
construing  a  will.  (  Wolfe  v.  Van  Nostrand,  2  Comst.  436.  Irv- 
ing v.  De  Kay,  9  Paige,  522.)  4.  In  construing  a  will,  words 
may  be  transposed  to  get  at  the  correct  meaning.  (Pond  v. 
Bergh,  10  Paige,  140.  Mason  v.  Jones,  2  Barb.  S.  C.  R.  229.) 
5.  If  two  parts  or  provisions  of  a  will  are  repugnant,  so  that 
both  cannot  stand,  the  last  will  prevail,  unless  other  parts  of  the 
will  forbid  it.  (Bradstreet  v.  Clark,  12  Wend.  602.  Covenhoven 
v.  Shuler,  2  Paige,  122.  Mason  v.  Jones,  2  Barb.  JS.  C.  R.  229. 
Parks  v.  Parks,  9  Paige,  107.)  6.  A  subsequent  clause,  appa- 
rently irreconcilable  with  precedent  provisions,  will  be  construed 
in  connection  with  them,  and  may  be  rejected  if  repugnant  to 
47 


370  CONSTRUCTION  OF  WILLS. 

the  intention  of  the  testator,  as  derived  from  the  whole  will. 
(Bradly  v.  Amidon,  10  Paige,  235.)  7.  A  will  and  codicil  are 
to  be  taken  and  construed  together  as  parts  of  one  and  the  same 
instrument.     (  Westcott  v.  Cadi/,  5  John.  Ch.  R.  334.) 

3.  Of  the  construction  of  wills,  with  regard  to  the  thing  be- 
queathed. Formerly,  in  wills  of  real  estate,  if  the  devise  contain- 
ed no  words  of  limitation  or  perpetuity,  the  devisee  took  only  an 
estate  for  life.  {Jackson  v.  Wells,  9  J.  R.  222.  Jackson  v. 
Embler,  14  /.  R.  198.)  The  courts,  however,  in  order  to  carry 
out  the  intent  which  is  considered  the  polar  star  in  the  construc- 
tion of  testamentary  instruments,  were  accustomed  to  seize  hold 
of  other  expressions  besides  the  word  "heirs."  as  aiFording  evidence 
that  a  fee  was  intended  to  be  passed.  Thus,  it  was  often  held 
that  the  word  "  estate  "  was  sufficient  to  pass  a  fee.  {Jackson  v. 
Merrill,  6  /.  R.  185.  Same  v.  Delancy,  13  id.  537,  553,  per 
Kent,  Chancellor.  S.  C.  11  id.  374.  per  Yates,  J)  That  word 
was  held  applicable  to  both  real  and  personal  estate,  and  might 
include  a  debt  and  mortgage. 

To  avoid  disputes  with  respect  to  the  precise  words  necessary  to 
convey  a  fee,  it  was  enacted  in  the  revised  statutes  that  every  will 
that  shall  be  made  by  a  testator,  in  express  terms,  of  all  his  real 
estate,  or  in  any  other  terms,  denoting  his  intent  to  devise  all  his 
real  property,  shall  be  construed  to  pass  all  the  real  estate  which 
he  was  entitled  to  devise  at  the  time  of  his  death.  (2  R.  iS.  57, 
§  5.)  But  this  statute  only  operates  upon  wills  made  subsequent 
to  the  revised  statutes  of  1830.  Wills  executed  before  that  time, 
are  not  touched  by  those  statutes.  {Parker  v.  Bogardus,  1  Seld. 
309.) 

The  introductory  clause  of  a  will  is  very  material  to  the  inquiry 
concerning  the  intention  of  the  testator  in  relation  to  the  quantum 
of  estate  devised.  {Per  Bronson,  J,  Fox  v.  Phelps,  17  Wend. 
393.)  They  are,  however,  often  words  of  course ;  and  in  order  to 
enlarge  the  estate,  they  should  be  in  some  way  connected  in  the 
body  of  the  instrument,  or  otherwise  with  the  more  important  de- 
vising clause.  {Per  Nelson,  Ch.  J,  in  Barheydt  v.  Barheydt,  20 
Wend.  576.) 


CONSTRUCTION  OF  WILLS— CHARGE.  371 

A  devise  of  all  one's  right  carries  a  fee  simple  to  the  devisee. 
{Newkirk  v.  Newkirk,  2  Caines,  345.     4  Kent  Com.  535  et  seq.) 

Sometimes  a  charge  upon  real  estate  creates  a  fee  without  any 
other  words.  Thus,  where  the  charge  is  on  the  estate,  and  there 
are  no  words  of  limitation,  the  devisee  takes  an  estate  for  life  only ; 
but  where  the  charge  is  on  the  person  of  the  devisee,  in  respect 
to  the  estate  in  his  hands,  he  takes  a  fee  by  implication.  (Jack- 
son v.  Bull,  10  /.  R.  148.  Harvey  v.  Olmsted,  1  Comst.  483, 
off.  1  Barbour,  102.)  But  to  raise  a  fee  by  implication,  the 
charge  must  be  absolute,  and  not  contingent.     (Id.) 

A  contingent  charge  on  the  real  estate  devised  will  not  carry  a  fee. 
A.  devised  as  follows  :  "  As  touching  such  worldly  estate  where- 
with it  hath  pleased  God  to  bless  me,  I  give,  devise,  and  dispose  of 
the  same  in  the  following  manner  and  form  ;"  he  then  enumerates 
certain  specific  legacies,  and  devises  to  his  son  "  all  the  certain  lot 
of  land  which  I  now  possess,  with  the  farming  utensils,"  (fee,  and 
adds,  "  all  these  legacies  before  mentioned  to  be  paid  on  the  1st 
May,  1805,  and  to  be  raised  and  levied  out  of  my  estate,"  and 
then  appointed  his  son  H.  and  another  person  his  executors.  It 
was  held  that  H.  took  only  an  estate  for  life ;  the  charge  being  on 
the  testator's  estate  generally,  it  was  contingent  as  to  the  real 
estate,  that  is,  the  personalty  must  be  exhausted  before  the  real 
estate  could  be  resorted  to.  (Jackson  v.  Harris,  8  J.  R.  141.) 
This  case  was  decided  before  the  revised  statutes,  but  the  question 
as  to  the  charge  is  the  same  now  as  it  was  then. 

The  foregoing  observations  relate  to  devises  and  charges  on  the 
real  estate.  With  regard  to  the  construction  of  wills  of  personal 
estate,  or  of  such  as  dispose  of  both  real  and  personal  property,  a 
few  words  will  be  added. 

The  word  "  goods"  is  nomen  generalissimun,  and  when  con- 
strued in  the  abstract  will  comprehend  all  the  personal  estate  of 
the  testator,  as  stock,  bonds,  notes,  money,  plate,  furniture,  &c. 
And  a  bequest  of  all  the  testator's  "  chattels"  will  have  the  same 
effect  as  a  bequest  of  all  the  "  goods  and  chattels."  So  the  word 
"  effects,"  standing  alone,  will  pass  the  whole  of  the  testator's  resi- 
duary estate.  (1  Alk.  180.  3  id.  02.  1  P.  Wms.  267.  Camp- 
bell v.  Prescott,  15  Ves.  507.) 

Under  a  bequest  of  "  goods  and  chattels  generally,"  choses  in 


372  CONSTRUCTION  OF  BEQUESTS. 

action,  bank  notes  being  considered  as  cash,  and  money  to  a  small 
amount,  and  leaseholds  also,  will  pass.  (1  P.  Wms.  267.)  But 
if  the  words  are  restricted  to  a  particular  place,  as  "  all  my  goods 
and  chattels  at  A,"  bonds  and  choses  in  action  will  not  pass,  be- 
cause choses  in  action  have  no  locality.  {Id.  and  note.  Chapman 
v.  Hart,  1  Ves.  sen.  273.) 

Under  a  similar  bequest  of  "  goods  and  chattels  in  and  about 
my  house  and  out-houses,"  running  horses  were  held  to  pass. 
{Countess  of  Gower  v.  Earl  Gower,  Ambler,  612.) 

The  term  "  household  goods"  is  an  expression  of  frequent  use  in 
wills.  It,  in  general,  means  articles  of  a  permanent  nature,  and 
not  consumed  in  the  enjoyment.  {Pratt  v.  Jackson,  2  P.  Wms. 
302.)  "  Household  stuff"  includes  all  necessary  household  uten- 
sils appertaining  to  the  personal  comfort  or  convenience  of  a 
family,  such  as  tables,  beds,  &c.  ;  and  plate  is  held  to  pass  under 
such  a  bequest,  if  commonly  used  by  the  testator.  {Masters  v. 
Masters,  1  P.  Wms.  424.  2  Fonb.  Eq.  342  et  seq.  Bunn  v. 
Winthrop,  1  J.  Ch.  R.  329.) 

The  term  "  household  furniture"  often  occurs  in  wills.  In  gen- 
eral, the  term  embraces  such  articles  of  domestic  use  and  conven- 
ience as  are  suitable  to  the  rank  and  condition  of  the  testator.  It 
does  not  embrace  books  or  wine.  China  will  pass,  unless  it  con- 
stitutes the  testator's  stock  in  trade.  {Porter  v.  Tournay,  3  Atk. 
311.     Kelly  v.  Powlett,  Ambler,  605.) 

Under  a  bequest  of  "  clothes  and  linen  whatsoever,"  body  linen 
only,  and  not  table  linen,  was  held  to  pass.     (3  Atk.  62,  63.) 

Where  the  testator  bequeathed  to  his  wife  all  the  rest,  residue, 
and  remainder  of  the  moneys  belonging  to  his  estate,  at  the  time 
of  his  decease,  it  was  held  that  the  word  "  moneys"  must  be  taken 
in  its  ordinary  acceptation,  and  to  mean  only  cash  and  not  bonds, 
mortgages  or  choses  in  action,  there  being  nothing  in  the  will  to 
show  that  the  testator  intended  to  use  the  word  in  that  extended 
sense.  {Mann  v.  Mann,  14  J.  R.  1,  off.  S.  C.  1  J.  Ch.  R.  231.) 
Money,  it  was  said  in  the  same  case,  means  gold  or  silver,  or  the 
lawful  currency  of  the  country,  or  bank  notes  where  they  are 
known  and  used  in  the  market  as  cash,  or  money  deposited  in  the 
bank  for  safe  keeping,  and  does  not  comprehend  promissory  notes, 
bonds,  mortgages,  or  other  securities. 


CONSTRUCTION"  OF  WILLS— PERSON.  373 

The  term  "  stock"  has  different  meanings,  and  the  construction  to 
be  given  to  it  in  a  will,  depends  on  other  parts  of  the  instrument,  and 
perhaps  the  occupation  or  condition  of  the  testator.  Thus,  under 
this  denomination,  are  embraced  money  in  the  public  funds,  an 
interest  in  an  incorporated  company,  as  bank  stock,  turnpike  stock 
and  the  like  ;  and  cattle,  such  as  oxen,  cows,  (fee.  and  it  would  seem 
growing  crops.  {Cox  v.  Godslave,  6  East,  G04,  note.  West  v. 
Moore,  8  id.  339.) 

Under  a  bequest  of  "  movables,"  will  pass  both  goods  actively 
and  passively  movables.  (Swinb.  930.)  It  is  said  debts  will  not 
pass  under  this  general  term  ;  though  it  is  supposed  this  latter 
construction  is  altered  by  the  addition  of  the  word  "  what- 
sover."  "  Immovables"  are  held  to  relate  to  things  attached  to  the 
freehold,  as  trees  and  the  like.  The  expression  "  in  door  movables," 
and  "out  of  door  movables,"  is  of  frequent  occurrence.  The 
former  has  a  similar  meaning  to  household  furniture  and  the  latter 
to  farming  utensils,  cattle  and  the  like.  But  neither  term  seems 
to  comprehend  money,  choses  in  action,  stock  in  trade,  or  things 
appertaining  to  the  person,  such  as  clothing.  (2  Fonb.  Eq.  b.  14, 
pt-  1,  ch.  1,  §§  8  to  11,  and  notes.) 

A  will  of  personal  property  speaks  from  the  death  of  the  tes- 
tator. Hence,  the  general  rule  is  that  a  will  of  personal  property, 
unless  there  are  qualifying  expressions,conveys  all  the  personal  es- 
tate of  which  the  testator  was  possessed  at  his  death.  (  Van  Vechten  v. 
Van  Vechten,8 Paige,  104.  Collin  v.  Collin,  1  Barb.  Ch.  R.  630.) 

4.  Of  the  construction  of  wills  with  regard  to  the  person  to 
whom  the  bequest  is  made.  It  is  quite  obvious  that  a  party  claim- 
ing a  benefit  under  a  will  must  show  himself  to  be  the  person  in- 
tended as  the  object  of  the  testator's  bounty.  The  imperfection  of 
human  language,  and  the  infirmity  of  the  human  memory,  often 
lead  to  doubts  and  uncertainties  which  can  be  solved  only  by  the 
courts.  The  testator  may  forget  the  name  of  the  individual  to 
whom  he  desires  to  give  a  legacy,  or  he  may  be  mistaken  in 
some  of  the  circumstances  which  tend  to  show  his  identity,  or  ho 
may  describe  him  in  such  a  way  or  in  such  language  as  to  leave  a 
doubt  as  to  his  meaning. 

A  mere  misdescription  of  the  legatee  does  not  render  a  legacy 


374  CONSTRUCTION  OF  WILLS— PERSON. 

void,  unless  the  ambiguity  be  such  that  it  is  impossible  to  ascer- 
tain, either  from  the  will  itself  or  from  proof  dehors  the  will,  who 
was  intended  as  the  object  of  the  testator's  bounty.  Smith  v. 
Smith,  4  Paige,  272.) 

If  the  context  of  the  will  affords  sufficient  evidence  of  the  iden- 
tity of  the  person  intended  as  the  legatee,  the]  will  alone  must  be 
looked  to  in  order  to  clear  up  the  difficulty  and  determine  the 
question.  If  this  be  insufficient,  after  examining  the  whole  will, 
recourse  must  be  had  to  parol  evidence.  (Smith  v.  Smith,  2  Edw. 
V.  Ch.  Rep.  189.) 

If  there  be  no  persons  answering  the  description  of  the  legatees, 
in  the  legal  sense  of  the  term  used  in  describing  them,  it  is  allow- 
able to  prove  the  situation  of  the  testator's  family,  to  enable  the 
court  to  ascertain  the  legatees  intended.  {Gardner  v.  Heyer, 
2  Paige,  11. 

A  legacy  or  devise  to  children  without  other  description,  as  a 
general  rule,  means,  legitimate  children  ;  and  if  the  testator  has 
such  children,  parol  evidence  cannot  be  received  to  show  that  a 
different  class  of  persons  was  intended  ;  but  he  having  only  ille- 
gitimate children,  proof  of  circumstances  dehors  the  will  may  be 
given  to  show  that  they  were  the  children  intended.     (Id.) 

Under  the  devise  to  children  as  a  class,  an  illegitimate  child 
cannot  take,  if  there  be  legitimate  children  living  at  the  time 
of  making  the  will,  unless  there  is  something  in  the  will  to 
show  a  contrary  intention  of  the  testator.  (Collins  v.  Hoxie, 
9  Paige,  81.) 

The  general  rule,  laid  down  by  Mr.  Preston,  and  which  is  well 
supported  by  the  authorities,  is,  that  under  a  bequest  to  a  class  of 
persons  to  vest  in  possession,  at  the  testator's  death,  all  answering 
the  description,  and  in  esse  at  that  period,  will  be  entitled,  this 
being  the  time  at  which  the  objects  are  to  be  ascertained,  and  the 
division  to  take  place.  For  the  same  reason,  where  the  fund  is 
given  to  be  enjoyed  at  a  future  period,  all  persons  born  before  that 
period,  and  in  esse  at  the  specified  time,  will  be  entitled.  Upon 
the  same  principle,  where  a  bequest  is  made  to  one  for  life,  with  a 
limitation  over  after  the  death  of  the  tenant  for  life  to  a  class  of 
persons,  as  children,  &c.  all  persons  answering  the  description  at 
the  testator's  death,  and  who  from  time  to  time  shall  answer  the 


CONSTRUCTION  OF  WILLS-PERSON.  375 

description  previous  to  the  division  of  the  fund  viz,  during  the  life 
of  the  tenant  for  life,  and  who  shall  be  in  ventre  sa  mere  at  the  death 
of  the  tenant  for  life,  will  be  embraced.  And  the  representa- 
tives of  such  of  those  deceased  legatees,  who  have  answered  the 
description  subsequent  to  the  cstators's  death,  and  before  such  di- 
vision, will  be  entitled,  equally  with  those  legatees  who  shall  be  in 
esse  at  the  time  of  the  division.  In  all  these  cases  the  court  acts  from 
an  anxiety  to  provide  for  as  many  children  as  possible  with  conven- 
ience. Any  children,  therefore,  coming  in  esse  before  a  determinate 
share  becomes  distributable  to  any  one  of  the  children,  will  be  in- 
cluded.    (Preston  on  Legacies,  191  et  seq.  and  the  cases  cited.) 

The  word  "children"  does  not  include  grandchildren,  or  any 
other  than  the  immediate  descendants  in  the  first  degree,  of  the 
person  named  as  the  ancestor.  But  it  may  include  them  where 
there  were  no  children  in  existence  at  the  time  of  the  making  the  will ; 
or  where  there  could  not  be  any  children  at  the  time,  or  in  the  event 
contemplated  by  the  testator  ;  or  where  the  testator  has  clearly 
shown,  by  the  use  of  other  words,  that  he  used  the  word  children 
as  synonymous  with  descendants,  or  issue,  or  to  designate  or  include 
illegitimate  offspring,  grandchildren  or  step  children.  (•Moiuatt  v. 
Carow,  7  Paige,  328.) 

"  Nephews  and  nieces"  in  the  ordinary  and  primary  sense  of  the 
words,  do  not  include  grand  nephews  and  grand  nieces,  or  more 
remote  descendants  ;  but  even  if  the  testator  leaves  nephews  and 
nieces,  the  situation  of  the  testator's  family  relatives,  and  the  fact 
that  one  of  his  sisters  had  at  the  time  the  will  was  made  grand- 
children, but  no  children,  may  be  taken  into  consideration  with  the 
provisions  of  the  will  itself,  to  show  that  he  meant  to  include 
grand  nephews  and  grand  nieces,  and  even  a  great  grand  niece,  in 
the  class  of  nephews  and  nieces.  (Cramer  v.  Pinckney,  3  Barb. 
Ch.  R.  466.) 

Under  a  bequest  to  "  descendants,"  all  the  issue  of  the  testator 
will  be  included,  however  remote.     (Crossly  v.  Clare,  Ambl.  397.) 

Where  the  term  "  heirs"  is  used  to  denote  succession  as  a  legacy 
"  to  the  heirs  of  A,"  it  means  such  persons  as  would  legally  succeed 
to  the  property  according  to  its  nature  and  quality.  If  it  is  per- 
sonal property,  the  next  of  kin  of  A  are  entitled ;  if  real  property, 
his  heirs  at  law ;    who  may  in  some  instances,  even  -under  our 


376  AMBIGUITY. 

statute,  be  a  different  class  of  persons  from  the  next  of  kin. 
(1  Jac.  t$*  Walk.  388,  Vaux  v.  Henderson.)  But  where  the 
word  is  not  used  to  denote  succession,  but  to  describe  a  legatee, 
and  there  is  nothing  in  the  other  parts  of  the  will  to  explain  it, 
there  is  no  reason,  it  would  seern,  to  depart  from  the  natural  and 
ordinary  sense  of  the  word  "  heir."  And  in  such  a  case  if  there 
are  more  heirs  than  one,  they  all  take  jointly.  (Mounsey  v.  Blamire, 
4  Russell,  384.) 

Under  a  bequest  to  the  "  issue"  of  A,  all  the  descendants  of  A, 
viz.,  children,  grandchildren,  &c,  are  included.  They  take  in 
such  a  case  per  capita  and  not  per  stirpes.     (3  Bro.  257.) 

A  bequest  to  "  next  of  kin"  is  confined  to  those  persons  who 
are  entitled  under  the  statute  of  distribution,  as  nearest  of  kin,  and 
does  not  include  those  who  claim  by  representation,  or  the  widow. 
( Garrick  v.  Lord  Camden,  14  Ves.  373.) 

A  bequest  by  a  husband  to  his  "  beloved  wife,"  not  mentioning 
her  by  name,  applies  exclusively  to  the  individual  who  answers  the 
description  at  the  date  of  the  will,  and  is  not  to  be  extended  to  an 
after  taken  wife,  unless  the  will  shall  have  been  republished  after 
the  second  marriage.  ( Garrat  v.  Niblock.  1  Russell  $•  Mylne, 
629.     5  Ves.  676.) 

A  bequest  to  "  legal  representatives"  is  held  to  point  to  such 
persons  as  are  embraced  in  the  statute  of  distributions  ;  but  a  be- 
quest to  "  personal  representatives"  has  been  held  to  include  the 
executor.     {Jennings  v.  Gallimore,  3  Ves.  146.     1  Anst.  128.) 

Uncertainty  in  the  description  of  the  legatee,  or  ambiguity  in  a 
will,  sometimes  defeats  altogether  the  object  of  the  testator.  If 
the  difficulty  be  such  that  it  cannot  be  obviated  by  parol  proof,  the 
legacy  will  fail. 

But  a  misnomer  of  a  legatee,  or  a  mistake  in  his  name,  will  not 
defeat  the  legacy,  provided  it  can  be  satisfactorily  shown,  who  was 
intended  by  the  testator.  ( Thomas  v.  Stevens,  4  J.  Ch.  R.  271. 
Connolly  v.  Pardon,  1  Paige,  291.  Banks  v.  Phelan,  4  Barb. 
S.  C.  R.  80.) 

A  mistake  or  ambiguity  may  be  corrected  or  explained  either  by 
the  context  or  by  parol  proof.     {Stockdale  v.  Bushby,  19  Ves.  381.) 


PAYMENT  OF  LEGACIES.  377 

There  are  two  kinds  of  ambiguity,  viz :  a  patent  ambiguity  and  a 
latent  ambiguity.  A  patent  ambiguity  is  one  which  appears  on 
the  face  of  the  instrument  itself,  and  renders  it  ambiguous  and  un- 
intelligible ;  as  if  in  a  will  there  were  a  blank  left  for  the  de- 
visee's name.  (Broom's  Maxims,  469.  Smith  on  Contracts,  28.) 
Such  an  ambiguity  cannot  be  explained  by  parol  proof.  ( Tole  v. 
Hardy,  6  Cowen,  341.) 

A  latent  ambiguity  is  where  the  instrument  itself  is  on  the  face 
of  it  intelligible  enough  ;  but  a  difficulty  arises  in  ascertaining  the 
identity  of  the  subject  matter  to  which  it  applies,  as  if  a  devise 
were  to  John  Smith,  without  further  description.  This  devise  is 
perfectly  intelligible  until  it  comes  to  be  shown  that  there  are 
more  John  Smiths  than  one.  It  then  becomes  uncertain  which  of 
them  was  intended.  As  this  ambiguity  is  created  by  the  proof 
of  extrinsic  facts,  so  it  may  be  removed  in  the  same  way.  ( Tole 
v.  Hardy,  supra.  Smith  on  Contracts,  28.  1  Greenl.  Ev.  §  297, 
et  seq.  Phillips'  Ev.  534  to  538,  4  Am.  from  7th  Lond.  ed. 
and  Cowen  fy  Hill's  Notes  to  same.) 


CHAPTER  IV. 

OF    THE    PAYMENT    OP    LEGACIES,    AND     HEREIN    OP    THE     PAY- 
MENT   OF    THE    RESIDUE,    AND    OP    DISTRIBUTIVE    SHARES.       , 

Section  I. 
Of  the  time  of  payment. 

The  general  rule  is,  that  legacies  are  not  to  be  paid  until  the 
debts  of  the  deceased  are  all  satisfied.  If,  in  any  case,  a  legacy  is 
directed  to  be  paid  before  the  period  has  elapsed  for  exhibiting 
claims  against  the  estate,  the  executor  or  administrator  is  author- 
ized to  require  a  bond  from  the  legatee  with  two  sufficient  sureties, 
conditioned  to  refund  the  whole,  or  a  ratable  proportion,  in  case 
of  a  deficiency  of  assets.     (2  R.  S.  90,  §  44.) 

At  common  law  the  time  allowed  for  paying  a  legacy  was  a  year 
from  the  death  of  the  testator,  where  no  time  was  specified  in  the 
48 


378  PAYMENT  OF  LEGACIES. 

will.  Our  statute  directs  that  no  legacy  shall  be  paid  by  an  ex- 
ecutor or  administrator  until  after  the  expiration  of  one  year 
from  granting  letters  testamentary  or  of  administration,  unless  the 
same  is  directed  by  the  will  to  be  sooner  paid.  (Id.  §  43.  Brad- 
ner  v.  Falkner,  2  Kernan,  472.) 

If  the  will  does  not  direct  it  to  be  sooner  paid,  the  surrogate  has 
no  power,  on  the  application  of  a  legatee,  or  a  relative  entitled  to 
a  distributive  share,  except  when  needed  for  the  support  of  the 
applicant,  and  which  will  be  noticed  hereafter,  (2  R.  S.  98,  §§  82, 
83 ;  Seymour  v.  Butler,  3  Bradf.  193,)  to  decree  payment  of 
such  legacy  or  distributive  share,  or  its  proportional  part,  until 
after  one  year  has  elapsed  from  the  granting  of  letters  testamen- 
tary or  of  administration.  (2  R.  S.  116,  §  18.)  If  the  executor 
or  administrator  has  pursued  the  course  pointed  out  by  the  statute 
of  obtaining  an  order  and  publishing  notice  to  exhibit  claims 
against  the  estate,  of  which  we  have  treated  in  a  preceding  chap- 
ter, he  will  be  able,  at  the  expiration  of  a  year  from  the  date  of 
his  letters,  to  ascertain  the  condition  of  the  estate.  If  he  finds  it 
such  as  to  enable  him  to  satisfy  the  debts  and  legacies,  he  may 
then  proceed  to  discharge  both.  He  will  incur  no  risk  in  paying 
legacies,  and  cannot  exact  a  bond  from  the  legatee.  Should  a 
subsequent  claim  arise,  after  payment  of  all  the  assets  to  the 
creditors,  legatees,  and  next  of  kin,  the  executor  is  not  responsible  ; 
but  the  claimant  must  follow  the  assets  into  the  hands  of  the 
legatees  and  next  of  kin  to  whom  they  have  been  paid.  As  has 
already  been  remarked  elsewhere,  he  assumes  that  the  claims  pre- 
sented under  the  six  months'  notice,  embrace  all  that  exist  against 
the  estate,  and  acts  accordingly.  Parties  having  demands  against 
the  estate,  either  as  legatees,  creditors,  or  next  of  kin,  have  a  right 
to  presume  that  the  executor  or  administrator  has  adopted  the 
steps  pointed  out  by  the  statute,  and  to  require  payment  of  their 
respective  claims. 

It  is  important,  as  well  for  the  safety  of  the  executor  or  admin- 
istrator as  for  the  interest  of  those  persons  to  whom  as  creditors, 
legatees,  or  distributees,  the  estate  in  truth  belongs,  that  the 
former  should  pursue  the  steps  pointed  out  by  the  statute.  The 
provisions  of  the  act  allowing  an  executor  or  administrator,  after 
the  expiration  of  eighteen  months  from  the  date  of  his  letters,  to 


EXECUTOR'S  ASSENT  TO  A  LEGACY.        379 

render  a  final  account  of  all  his  proceedings,  and  which  allow  him 
to  render  such  account,  when  cited  by  some  person  having  a  de- 
mand on  the  estate,  and  thus  obtain  a  final  settlement,  seem  to  be 
based  on  the  supposition  that  the  executor  or  administrator  has 
pursued  the  requisite  steps  to  notify  the  creditors  to  present  their 
demands.  It  is  a  general  principle  that  a  decree  binds  no  person 
who  is  not  a  party  to  the  proceeding.  Creditors  who  have  not 
been  called  upon  by  a  notice  to  present  their  claims  cannot  fairly 
be  deemed  guilty  of  laches  by  not  exhibiting  them.  At  common 
law  the  debtor  is  required  to  seek  the  creditor  ;  the  statute  inverts 
this  order  of  things  in  favor  of  parties  thus  acting  in  a  representa- 
tive capacity. 

Section  II. 
Of  the  assent  of  the  executor  to  a  legacy. 

The  entire  personal  estate  of  the  testator  vests,  at  his  death,  in 
his  executors,  who  hold  it  in  trust  for  the  creditors,  legatees,  and 
persons  entitled  to  a  distributive  share  of  the  surplus.  It  is 
essential  for  their  protection  that  no  legatee,  whether  general  or 
specific,  should  be  permitted,  without  the  assent  of  the  executor, 
to  interfere  with  the  estate.  They  must  take  care  to  satisfy  debts 
before  legacies.  (Tole  v.  Hardy,  6  Cowen,  539.  Wentworth 
Ex.  408.)  The  legatee  cannot  take  the  thing  bequeathed  without 
the  permission  of  the  executor.  Before  the  assent  of  the  latter, 
the  legatee  has  only  an  imperfect  and  inchoate  right  to  the  thing 
given;  such,  however,  as  is  transmissible  to  his  own  personal 
representatives.     (  Went.  Exfs,  69,  70.) 

If  an  executor  improperly  refuses  his  assent,  he  may  be  com- 
pelled to  give  it  by  a  court  of  equity.  (  Went.  Ex'rs,  70.)  This 
assent  is  presumptive  evidence  of  assets  to  pay  both  debts 
and  legacies.  The  surrogate's  court  has  the  same  power  to  compel 
the  assent  of  an  executor  to  a  legacy  as  a  court  of  equity.  This 
results  from  the  general  power  of  the  court  over  the  subject  mat- 
ter, and  the  expressed  power,  conferred  by  law,  "  to  direct  and  con- 
trol the  conduct  of  executors  and  administrators."  (2  li.  S. 
220,  §  1.) 

The  assent  of  the  executor  may  be  cither  express  or  implied. 


380  ORDER  OF  PAYMENT. 

It  may  be  absolute  or  conditional.  (  Went.  Ex'rs,  414.)  It 
could,  at  common  law,  be  given  before  probate,  but  with  us  it  is 
believed  it  cannot  be  given,  until  letters  testamentary  have  issued 
to  the  executor ;  for,  until  then,  he  can  do  no  act  to  bind  the  es- 
tate.    (2  R.  IS.  71,  §  16.) 

The  assent  of  the  executor  is  not  necessary  where  the  legacy  is 
charged  on,  or  payable  out  of  real  estate.  ( Touchstone,  2d  vol. 
455.     Tole  v.  Hardy,  6  Cowen,  339.) 

The  remedy  given  to  the  legatee,  to  proceed  in  the  surrogate's 
court  to  obtain  the  legacy,  after  the  expiration  of  a  year  from  the 
date  of  the  letters  testamentary  or  of  administration,  is  not  founded 
on  any  supposed  assent  of  the  executor  to  the  legacy,  nor  can  it 
be  defeated  by  withholding  his  assent,  if  the  assets  are  sufficient- 
ly ample.  (2  R.  IS.  116,  §  18.)  The  surrogate's  court,  in  this 
respect,  exercises  all  the  powers  of  a  court  of  equity  ;  and  can  de- 
cree payment  of  the  whole,  or  a  proportional  part,  under  the  same 
circumstances,  which  would  justify  the  same  relief  in  a  court  of 
equity. 

The  assent  of  the  executor  has  relation  to  the  death  of  the  tes- 
tator. This  has  reference  to  the  transmissibility  of  the  legacy 
to  the  personal  representatives  of  the  legatee,  in  case  he  survives 
the  testator,  and  dies  before  payment. 

Section  III. 

Of  the  order  in  which  legacies  are  to  be  paid,  and  of  abatement  of 

legacies. 

The  duty  of  the  executor,  in  this  respect,  is  defined  by  the  stat- 
ute, by  which  it  is  enacted  that,  after  the  expiration  of  one  year 
from  the  granting  of  any  letters  testamentary  or  of  administration, 
the  executors  or  administrators  shall  discharge  the  specific  lega- 
acies  bequeathed  by  any  will,  and  pay  the  general  legacies,  if 
there  be  assets ;  and  if  there  be  not  sufficient  assets,  then  an 
abatement  of  the  general  legacies  shall  be  made  in  equal  propor- 
tions.    (2  R.  IS.  90,  §  45.) 

This  enactment  is  merely  declaratory  of  the  then  existing  law, 
and  not  introductory  of  a  new  rule,  except  in  fixing  the  date  of 
the  letters,  instead  of  the  death  of  the  testator,  as  the  period  from 


ORDER  OF  PAYMENT— ABATEMENT.  381 

which  the  one  year  is  to  be  computed.  {Preston  on  Legacies, 
276.) 

The  specific  legacies  are  thus  first  to  be  discharged  in  full,  and 
then  the  general  legacies ;  but  if  the  assets  are  insufficient  to  pay- 
all,  then  the  general  legacies,  but  not  the  specific  legacies,  are 
subject  to  abatement. 

This  privilege  of  the  specific  legacy  is  some  compensation  for 
the  risk  it  encounters  of  being  destroyed  by  the  principle  of 
ademption,  without  any  claim  to  contribution  from  the  other  lega- 
tees.    [Hinton  v.  Pinke,  1  P.  Wms.  540.) 

Although  it  is  the  general  rule  that  specific  legacies  shall  not 
abate  in  favor  of  general  legacies,  yet  the  rule  may  be  in  some  in- 
stances controlled  by  the  intention  of  the  testator.  Thus,  if  a  man 
devises  specific  and  pecuniary  legacies,  and  afterwards  says  that 
such  pecuniary  legacies  should  come  out  of  all  his  personal  estate, 
or  words  tantamount,  if  there  is  no  other  personal  estate  than  the 
specific  legacies,  they  must  be  intended  to  be  subject  to  those  that 
are  pecuniary,  otherwise  the  bequest  to  the  pecuniary  legatees  would 
be  altogether  nugatory.  ( Toller,  340.  2  Fonb.  Eq.  pt.  1,  ch.  2, 
§  5.)  But  if  there  is  nothing  in  the  will  indicating  a  contrary  in- 
tention, and  the  assets  are  sufficient  to  pay  the  debts  and  specific 
legacies,  those  legacies  must  be  paid  in  full :  and  they  cannot  be 
required  to  contribute  towards  the  payment  of  the  general  legacies. 
{Hinton  v.  Pinke,  supra.) 

But  though  the  general  rule  be  as  stated  in  the  statute,  it  must 
be  understood  as  applying  only  to  legacies,  which  are  mere  gratu- 
ities ;  for  if  there  be  a  valuable  consideration  for  the  testamentary 
gift,  as  where  a  general  legacy  is  given  in  consideration  of  a  debt 
owing  to  the  legatee,  or  of  the  relinquishment  of  any  right  or  in- 
terest, as  of  her  dower  by  a  widow,  such  legacy  will  be  entitled  to 
a  preference  of  payment  over  the  general  legacies,  which  are  mere 
bounties.  (Burridge  v.  Bradyl,  1  P.  Wms.  127.  Williamson 
v.  Williamson,  6  Paige,  298.  Heath  v.  Dendy,  1  Russ.  Ch.  R. 
543.)  The  legatee,  in  such  cases,  is  considered  rather  as  a  pur- 
chaser than  a  volunteer. 

A  similar  preference  has  been  extended  to  legacies  of  piety, 
notwithstanding  the  general  language  of  the  statute ;  as  where 
the  legacy  was  for  the  erection  of  headstones  at  the  graves  of  the 


382  ORDER  OF  PAYMENT. 

testator's  parents,  or  other  near  relatives.  Such  legacy  the  chan- 
cellor said  should  be  paid  in  full,  and  not  abate  ratably  -with  the 
general  legacies.     (  Wood  v.  Vandenburgh,  6  Paige,  278.) 

But  a  legatee  is  not  deemed  a  purchaser  where  the  debt  to  pay 
which  it  was  bequeathed  was  the  debt  of  a  relative  or  a  friend, 
which  the  testator  was  under  no  legal  liability  to  pay.  Such  be- 
quest is  a  mere  bounty,  and  in  no  better  condition  as  to  abatement 
than  other  legacies.     (Shirt  v.   Westby,  16  Ves.  394.) 

Priority  may,  however,  be  expressly  given  by  the  testator  to 
one  general  legacy  over  another.  (Marsh  v.  Evans,  1  P.  Wms. 
688.  Preston  on  Legacies,  359.)  It  is  based  on  the  principle  of 
intention  of  the  testator,  which  must  obviously  control  where  it  is 
clearly  manifested.  The  intention  sometimes  may  be  gathered  by 
an  unequivocal  implication.  This  is  the  case  where  a  bequest  is 
made  of  a  sum  of  money  payable  out  of  a  particular  fund,  called  a 
demonstrative  legacy.  It  differs,  we  have  seen,  in  some  respects, 
from  a  specific  legacy,  because  it  does  not  fail  by  the  destruction 
of  the  fund  if  there  be  other  assets  out  of  which  it  can  be  made. 
But  by  pointing  to  a  particular  fund,  the  testator  indicates  a  de- 
sire that  the  legatee  should  be  preferred  to  the  other  general 
legacies.     (Preston  on  Legacies,  supra.      2  Wms.  Ex'rs.  1174.) 

Nor  are  these  principles  incompatible  with  the  statute  before 
cited.  (2  R.  S.  90,  §  45.)  The  statute  deals  in  general  terms,  and 
was  doubtles  intended  for  the  regulation  of  the  conduct  of  the  ex- 
ecutors or  administrators,  in  cases  where  the  testator  had  not  in- 
dicated a  different  intention,  either  expressly  or  by  implication. 
This  construction  satisfies  the  letter  as  well  as  spirit  of  the  act. 

The  rule  on  failure  of  assets  to  satisfy  all  the  claims  against  the 
estate,  is,  first  to  make  the  general  legacies  abate,  and  if  necessary 
take  the  whole,  for  the  payment  of  debts.  If  there  is  still  a  defi- 
ciency, resort  is  then  to  be  had  to  the  demonstrative  and  specific 
legacies.  General  and  specific  legatees  abate  between  themselves, 
according  to  the  value  of  their  legacies,  at  the  time  they  are  pay- 
able. Where  no  time  is  mentioned  in  the  will,  a  year  from  the 
date  of  the  letters  testamentary  or  of  administration,  is  the  time  at 
which  the  computation  must  be  made.  (2  R.  S.  90,  §  45.  Brad- 
ncr  v.  Faulkner,  2  Kernan,  472.)  But  if  the  testator  has  given 
any  express  direction  in  his  will  with  regard  to  priority,  such 


TO  VnOM  PAYABLE.  383 

direction  must  be  obeyed.  No  particular  form  of  words  is  pre- 
scribed for  this  purpose.  Any  language  which  clearly  indicates 
the  testator's  intention  -will  suffice.  But  mere  general  expressions, 
as  "imprimis,"  or,  "in  the  first  place,"  I  give  so  much  to  A,  are 
not  sufficient  to  entitle  the  legatee  to  a  preference  over  others  in 
the  same  class.     (Brown  v.  Allen,  1  Vernon,  31.) 

Section  IV. 
Of  the  person  to  whom  the  legacy  is  to  be  paid. 

In  order  to  discharge  an  obligation  by  payment,  it  is  obvious 
that  the  payment  must  be  made  to  the  party  having  the  legal  au- 
thority to  receive  it.  The  honest  intention  of  the  executor  -will 
afford  no  excuse  for  a  misapplication  of  the  bequest ;  and,  there- 
fore, if  he  pays  it  to  one  not  strictly  entitled,  he  will  be  compelled, 
notwithstanding,  to  pay  it  over  again  to  the  rightful  claimant. 

The  principal  difficulty  which  formerly  existed  on  this  subject, 
was  in  regard  to  the  payment  of  legacies  belonging  to  infants. 
Many  of  the  embarrasments  attending  this  point,  have  been 
obviated  by  the  New  York  revised  statutes  ;  which,  while  they 
have  greatly  relieved  the  executor  of  responsibility,  have,  never- 
theless, guarded  the  rights  of  the  infant.  If,  in  some  instances, 
an  infant  may  still  suffer  by  the  dishonesty  of  guardians,  or  the 
insolvency  of  sureties,  it  is  a  calamity  incident  to  his  condition 
which  civil  institutions  cannot  alwa}Ts  prevent. 

At  common  law,  the  father,  as  guardian  by  nature  merely,  was 
not  allowed  to  receive  legacies  bequeathed  to  his  infant  children. 
(Genet  v.  Talmadge,  1  J.  Ch.  R.  3.)  This  prohibition  extended 
to  legacies,  or  distributive  shares  of  any  amount,  however  small  or 
great.  But  now,  by  the  revised  statutes,  executors  are  authorized 
to  pay  to  the  father  of  the  infant  legatee,  to  whom  a  legacy  under 
the  value  of  fifty  dollars  is  bequeathed,  for  the  use  and  benefit  of 
the  legatee.  (2  R.  8.  91.  §  46.)  In  this  case,  therefore,  the  re- 
ceipt of  the  father  on  the  money  being  paid,  is  a  protection  to  the 
executor.  The  father  is  not  required  to  give  any  security  either 
to  the  executor  or  to  the  infant.  The  father  thus  becomes  a  trus- 
tee for  the  infant  of  the  sum  received,  and  is  liable  to  account  to 
him  on  his  coming  of  age.     Whether,  in  case  the  father  be  dead,  the 


384  PAYMENT  TO  GUARDIAN. 

mother,  who  thus  becomes  the  guardian  by  nature,  would  be  entitled 
receive  the  legacy  for  the  benefit  of  the  infant,  as  coming  within 
the  equity,  though  not  within  the  words  of  the  statute,  has  not  yet 
been  decided. 

If  the  legacy  be  of  the  value  of  fifty  dollars  or  more,  it  may  bo 
paid  under  the  direction  of  the  surrogate  to  the  general  guardian 
of  the  minor,  who  is  required  to  give  security  to  the  minor  to  be  ap- 
proved by  the  surrogate  for  the  faithful  application  and  accounting 
for  such  legacy.  (2  R.  S.  91,  §  47.)  The  father  may  be  appoint- 
ed such  guardian.  {Genet  v.  Talmadge,  supra.)  But  it  will 
be  seen  hereafter,  that  such  appointment  must  be  made  by  the 
supreme  court,  the  surrogate  having  no  power  to  appoint  a  general 
guardian  for  an  infant  during  the  life  of  the  father.  (8ee  post, 
ch.  G,  part  3.) 

The  security  given  by  the  guardian  on  his  appointment,  is  taken 
with  reference  to  the  infant's  property  at  that  time.  Whether  it 
is  an  adequate  protection  for  the  infant,  when  the  legacy  is  to  be 
paid,  depends  on  a  variety  of  circumstances ;  and,  therefore,  it  is 
expedient  that  additional  security  should  be  required.  The  mat- 
ter is  usually  brought  before  the  surrogate  by  petition,  and  he, 
after  inquiring  into  the  matter,  in  a  summary  way,  makes  an  order 
for  the  payment  of  the  money  by  the  executor  to  the  guardian  of 
the  infant  legatee,  on  his  entering  into  the  requisite  security. 
The  order  should  be  entered  in  the  book  of  minutes,  and  the  bond, 
after  being  duly  acknowledged  or  proved,  should  be  filed  in  the 
office  of  the  surrogate.  A  payment  in  pursuance  of  this  order  is 
a  complete  protection  to  the  executor,  whether  the  sureties  prove 
to  be  insolvent  or  not. 

It  is  further  provided,  in  a  subsequent  section,  that  if  the  infant 
has  no  general  guardian,  or  if  the  surrogate  does  not  direct  the  pay- 
ment to  such  guardian,  the  legacy  shall  be  invested  in  permanent 
securities,  under  the  direction  of  the  surrogate,  in  the  name  and 
for  the  benefit  of  the  minor,  upon  annual  interest ;  and  the  interest 
may  be  applied,  under  the  direction  of  the  surrogate,  to  the  sup- 
port and  education  of  the  minor.  (2  R.  IS.  91,  §  48.  McLoskey 
v.  Reid,  4  Bradf.  334.)  It  is  the  duty  of  the  executors  or  admin- 
istrators to  perform  this  requirement.  There  may  be  satisfactory 
reasons  against  directing  the  payment  of  the  money  to  the  general 


PAYMENT  TO  GUARDIAN.  385 

guardian,  or  the  infant  may  have  none.  The  executors,  after  as- 
certaining the  state  of  the  assets,  should  present  the  facts  to  the 
surrogate,  in  the  shape  of  a  petition,  indicating  therein  the  pro- 
posed mode  of  investment.  The  surrogate,  after  inquiring  into 
the  facts  in  a  summary  way,  will,  if  he  deems  it  for  the  interest 
of  the  infant,  direct  the  investment,  or  make  such  other  order  in 
the  premises  as  shall  be  just.  These  securities  are  to  be  kept  by 
the  general  guardian,  if  there  be  one,  and  the  interest  is  to  be 
received  by  him,  and  applied,  under  the  direction  of  the  surrogate, 
to  the  support  and  education  of  the  minor. 

In  case  the  minor  has  no  guardian,  the  surrogate  is  required  to 
receive  the  securities  from  the  executors  or  administrators,  and 
keep  them  in  his  office ;  to  collect,  receive  and  apply  the  interest 
for  the  support  and  education  of  the  minor  ;  and,  when  necessary, 
to  collect  the  principal,  and  reinvest  the  same,  and  also  reinvest 
any  interest  that  may  not  be  necessarily  expended  as  aforesaid. 
(2  R.  S.  91,  §  49.)  On  arriving  at  age,  the  minor  is  entitled  to 
receive  from  the  surrogate  the  securities  so  taken,  and  the  interest 
or  other  moneys  that  may  have  been  received  ;  and  the  surrogate 
and  his  sureties  are  liable  to  account  for  the  same.  (Id.  §  50.) 
In  effect,  the  surrogate  in  such  a  case  acts,  so  far  as  the  manage- 
ment of  the  legacy  is  concerned,  as  a  guardian  of  the  minor.  In 
case  of  the  death  of  the  minor  before  coming  of  age,  the  securities 
and  moneys  go  to  his  executors  or  administrators,  to  be  applied 
and  distributed  according  to  law  ;  and  the  surrogate  and  his  sure- 
ties are  liable,  in  like  manner,  to  account  to  such  executor  or  ad- 
ministrator.    (Id.  §  51.) 

With  regard  to  the  nature  of  the  investment  of  the  infant's 
legacy,  the  surrogate  doubtless  has  a  reasonable  discretion.  He 
may  direct  it  to  be  loaned  out  on  bond  and  mortgage  for  the  ben- 
efit of  the  infant.  In  such  case,  the  security  should  be  taken  to 
the  infant.  The  mortgage  should  be  on  unincumbered  real  estate, 
of  at  least  double  the  cash  value  of  the  sum  loaned,  exclusive  of 
buildings. 

An  investment,  attended  with  less  trouble  and  responsibility  to 
the  surrogate,  and  equally  safe  for  the  infant,  is  authorized  by  the 
act  to  incorporate  the  New  York  Life  Insurance  and  Trust  Com. 
pany.     (L.  of  1830,  ch.  75.     L.  of  1834,  ch.  250.     WillaroVs  Lq. 

49 


PAYMENT  TO  GUARDIAN— TRUST  COMPANY. 

Juris.  558.)  By  this  statute  it  is  enacted  that  iiTall  cases  where 
an  application  shall  be  made  to  the  court  of  chancery,  now  the 
supreme  court,  or  to  a  surrogate  having  jurisdiction,  for  the  ap- 
pointment of  a  guardian  of  any  infant,  the  annual  income  of  whose 
estate  shall  exceed  the  sum  of  one  hundred  dollars,  the  court  shall 
have  power  to  appoint  the  said  company  as  guardian  of  the  estate 
of  such  infant. 

The  fourth  section  of  the  act  provides,  that  on  any  sum  of  money 
not  less  than  one  hundred  dollars,  which  shall  be  collected  or  re- 
ceived by  the  said  company,  in  its  capacity  of  guardian  and  re- 
ceiver, an  interest  shall  be  allowed  by  the  said  company  of  not 
less  than  the  rate  of  four  per  cent  annually ;  which  interest  shall 
continue  until  the  money  so  received  shall  be  duly  expended  or 
distributed.  A  subsequent  section  provides  that  where  the  annual 
income  of  the  infant's  estate,  of  which  they  are  guardian,  shall 
exceed  the  sum  allowed,  or  which  may  be  sufficient  for  the  educa- 
tion and  support  of  such  infant,  such  surplus  income  shall  be 
accumulated  by  the  said  company,  for  the  benefit  of  such  infant, 
by  adding  interest  on  the  whole  as  a  new  principal ;  and  the  in- 
terest so  to  be  allowed  and  added  on  such  annual  accumulation 
shall  in  no  case  be  less  than  four  per  cent.  The  company,  when 
thus  appointed  guardian,  are  not  required  to  give  a  bond  or  other 
collateral  security.  But  all  investments  of  moneys  received  by  the 
said  company,  as  guardian,  are  declared  to  be  at  the  risk  of  the  said 
corporation  ;  and  for  all  losses  of  such  moneys  the  capital  stock, 
property  and  effects  of  the  said  corporation  are  made  absolutely 
liable  ;  and  in  case  of  the  dissolution  of  the  said  company  by  the 
legislature,  or  by  the  supreme  court,  or  otherwise,  the  debts  due 
from  the  company  as  guardian  are  declared  to  have  a  preference. 

Should  the  surrogate  adopt  the  trust  company  as  the  depositary 
of  money  paid  into  court  for  infants,  he  should  cause  an  appoint- 
ment of  the  company  by  its  corporate  name,  to  be  made  out  under 
the  seal  of  the  court,  and  recorded  in  the  proper  book.  The  or- 
der for  the  appointment  should  be,  as  in  other  cases,  entered  in 
the  book  of  minutes.  He  should  open  an  account  with  the  com- 
pany, and  between  himself  and  the  infant,  which  would  be  appropri- 
ately entered  in  the  book  for  guardians'  accounts,  which  he  is  direct- 
ed by  law  to  keep.     (2  R.  S.  222,  §  7,  subd.  5.) 


LEGACIES  TO  MARRIED  WOMEN.  387 

The  trust  company,  however,  cannot  be  appointed  guardian 
unless  the  annual  income  of  the  infant's  estate  exceeds  $100.  If 
this  income  is  derived  from  the  rent  of  real  estate,  or  other  secure 
investments  on  real  property,  it  would  not  be  necessary,  or  advis- 
able, to  break  up  the  investments,  and  make  the  company  guardian. 

This  company  is  also  authorized  to  receive  moneys  in  trust,  and 
to  accept  and  execute  all  such  trusts  of  every  description,  as  may 
be  transferred  to  them  by  order  of  the  supreme  court  or  by  any 
surrogate.  It  forms,  therefore,  a  safe  and  convenient  depository 
of  money,  paid  into  court  for  infants  or  others,  either  on  legacies, 
or  on  other  accounts. 

At  common  law,  a  legacy  bequeathed  to  a  married  woman  must 
be  paid  to  her  husband.  {Palmer  v.  Trevor,  1  Vem.  251. 
Howard  v.  Moffatt,  2  John.  Ch.  R.  206.)  But  if  he  had  to  in- 
voke the  aid  of  a  court  of  equity,  to  enable  him  to  get  possession 
of  his  wife's  property,  that  court  would  require  him  to  do  what  was 
equitable,  by  making  a  reasonable  provision  out  of  it,  for  the 
maintenance  of  her  and  her  children.  {Id.)  It  was  always  in 
the  power  of  the  testator  so  to  frame  the  bequest  as  to  exclude 
the  husband,  and  to  allow  the  payment  to  the  wife  alone,  or  her 
order.  Any  language  in  the  legacy  indicating  the  intention  of 
the  testator  that  the  legacy  should  be  "  for  her  own  use,"  or  "  for 
her  own  disposal,"  and  the  like,  would  be  sufficient  for  this  pur- 
pose. {Shirley  v.  Shirley,  9  Paige,  363.  Willard's  Equity 
Juris.  559.) 

The  power  of  courts  of  equity  in  this  class  of  cases  was  always 
exercised  for  the  benefit  of  the  Avife  ;  and  hence  if  she  came  into 
court  and  waived  a  settlement  and  consented  to  the  payment  to 
her  husband,  the  court  would  make  the  order  accordingly.  It 
was  usual,  also,  when  the  sum  was  not  large,  and  the  parties  lived 
together,  and  the  husband  supported  the  family  as  far  as  he  was 
able,  for  the  court  of  chancery  to  dispense  with  a  settlement,  and 
allow  the  husband  to  receive  the  legacy. 

This  subject  is  now  provided  for  by  the  acts  of  1848  and  1849, 
for  the  more  effectual  protection  of  the  property  of  married  women. 
{Laws  of  1848,  p.  307.  Laws  of  1849,  p.  528.)  The  third 
section  of  the  act  as  amended  in  1849,  allows  any  married  female 


388  LEGACIES  PAYABLE  AT  A  FUTURE  TIME. 

to  take  by  inheritance  or  by  gift,  grant,  devise,  or  bequest,  from  any 
person  other  than  her  husband,  and  hold  to  her  sole  and  separate 
use,  and  convey  and  devise  real  and  personal  property,  and  any 
interest  or  estate  therein,  and  the  rents,  issues  and  profits  thereof, 
in  the  same  manner  and  with  the  like  effect  as  if  she  were  unmar- 
ried; and  the  same  shall  not  be  subject  to  the  disposal  of  her  hus- 
band nor  be  liable  for  his  debts. 

A  bequest  to  a  married  female  which  takes  effect  after  the 
statute  of  1849,  is  undoubtedly  payable  to  the  wife,  and  her  dis- 
charge will  be  a  protection  to  the  executor.  A  payment  to  the 
husband  without  authority  from  the  wife,  would  not  operate  as  a 
discharge.  Nor  can  the  creditors  of  the  husband  ever  reach  it 
without  the  assent  of  the  wife.  (See  Willard's  Eq.  Juris.  640, 
641,  remarks  on  these  statutes.) 

It  is  deemed  not  inappropriate  to  the  present  head,  to  consider 
the  practice  in  the  case  of  legacies  payable  at  a  future  period. 
Although  legatees  are  in  no  case  entitled  to  receive  their  legacies 
before  the  time  of  payment  arrives  ;  yet,  it  seems,  they  are  entitled 
to  go  into  a  court  of  equity  and  pray  that  a  sufficient  sum  be  set 
apart  to  answer  the  legacy  when  it  becomes  due.  The  court  will, 
in  such  a  case,  compel  the  executor  to  bring  into  court  money  in 
his  hands,  or  give  security  for  its  payment  when  the  legacy  is 
payable  at  a  future  day.     {hupton  v.  Lupton,  2  /.  Ch.  R.  614.) 

Where  there  is  a  bequest  for  life  or  other  limited  period,  with  a 
limitation  over,  of  specific  articles  not  necessarily  consumed  in  the 
using,  the  modern  practice  is  only  to  require  an  inventory  and 
receipt  from  the  first  taker,  specifying  that  they  belong  to  him  for 
the  particular  period  only,  and  then  to  the  remainderman ;  and 
security  is  not  required,  unless  there  is  danger  that  the  articles 
may  be  wasted,  or  otherwise  lost  to  the  remainderman.  (Coven- 
hoven  v.  Shuler,  2  Paige,  122.  De  Peyster  v.  Clendining, 
8  Paige,  295.     Spear  v.  Tinkham,  2  Barb.  Ch.  R.  211.) 

Where  an  estate  for  life,  or  any  interest  short  of  absolute  owner- 
ship, was  given  in  the  general  residue  of  the  personal  estate,  terms 
for  years,  and  other  perishable  funds,  or  property  which  might  be 
consumed  in  the  use,  was  to  be  converted  and  invested  in  such  a 
way  as  to  produce  a  permanent  capital,  and  the  legatee  be  entitled 
only  to  the  interest  or  income  of  such  capital,  it  was  held  by  the 


LEGACIES  PAYABLE  AT  A  FUTUKE  TIME.  389 

chancellor  that  the  legatee  was  not  entitled  to  all  the  tolls  of  a  toll- 
bridge,  being  a  franchise  for  years  owned  by  the  testator,  but  only 
to  such  portion  of  them  as  would  equal  the  interest  of  a  capital 
equivalent  to  the  cash  value  of  the  franchise  at  the  time  of  the 
testator's  death.     {Cairns  v.  Chaubert,  9  Paige,  160.) 

It  has  sometimes  been  made  a  question,  whether  on  a  bequest  of 
the  use  of  the  residue  of  personal  estate  for  life,  the  executor 
should  retain  the  fund  and  pay  the  income  to  the  legatee,  or  should 
transfer  the  principal  to  the  legatee  on  receiving  sufficient  security 
for  its  return.  In  Clark  v.  Clark,  8  Paige,  160,  which  came  be- 
fore the  late  chancellor  on  appeal  from  a  surrogate's  court,  the 
chancellor  held  that  either  course  might  be  adopted,  at  the  discre- 
tion of  the  executor,  though  a  preference  was  given  to  the  former 
course.  If  in  such  a  case  an  executor  pays  over  the  fund  to  the 
legatee,  without  security,  and  it  is  squandered  by  the  legatee,  the 
executor  will  be  liable  to  replace  it,  though  he  acted  in  good  faith, 
when  he  paid  it  to  the  legatee  for  life.     (Id.) 

The  foregoing  cases  are  enough  to  illustrate  the  general  princi- 
ples applicable  to  this  subject.  The  practical  duty  of  the  executor 
or  administrator  in  cases  of  this  kind,  where  a  specific  article,  not 
necessarily  consumed  in  the  using,  is  bequeathed  to  one  for  life, 
with  remainder  over,  is,  after  the  period  for  paying  the  legacy  has 
arrived,  to  deliver  the  article  bequeathed  to  the  tenant  for  life,  and 
to  take  from  him  a  written  inventory  and  agreement,  setting  forth 
his  own  interest  in  the  property,  and  acknowledging  that  on  his 
death  it  belongs  to  the  person  in  remainder.  The  inventory  and 
agreement  should  be  delivered  to  the  remainderman,  who  is  alone 
interested  in  it.  The  executor  or  administrator  cannot  be  held 
responsible  for  the  abuse  of  the  article  by  the  particular  tenant. 
His  duty  is  fully  performed,  on  delivering  it  to  the  person  first 
entitled  to  use  it.  and  taking  from  him  the  inventory  and  deliver- 
ing it  to  the  remainderman. 

Where  there  is  a  general  bequest  to  one  for  life,  and  remainder 
over,  the  executor  should  convert  the  whole  into  money  and  invest 
it  in  permanent  securities.  The  interest  only  is  payable  to  the 
tenant  for  life,  and  on  his  death  the  residue  belongs  to  the  re- 
mainderman. 


390  INTEREST  ON  LEGACIES. 

Such  is  the  difference  between  a  specific  and  general  legacy, 
where  the  first  legatee  is  not  entitled  to  the  whole  interest,  and  the 
rights  of  the  remainderman  are  to  be  considered  and  protected  by 
the  court. 

Section   V. 

Of  interest  on  legacies  ;  of  the  increase  of  specif  c  legacies  ;  of 
legacies  charged  on  land  ;  and  of  refunding  legacies. 

It  is  competent  for  the  testator  to  declare  whether  the  legacies 
bequeathed  by  him  shall  bear  interest ;  and  to  prescribe  the  rate 
per  cent,  and  the  time  from  which  it  shall  be  computed. 

In  case  he  makes  no  mention  of  the  subject  of  interest,  the 
question  whether  the  legacy  bears  interest  or  not,  and  from  what 
time,  is  established  by  the  rules  of  law,  founded  on  the  presumed 
intention  of  the  testator,  and  the  equity  of  the  case. 

1.  Where  no  time  is  fixed  by  the  testator  in  the  will,  it  has 
been  seen  that  the  legacy  becomes  due  and  payable  at  the  end  of 
a  year  from  the  date  of  the  letters  testamentary.  At  the  end  of 
this  time,  and  not  before,  if  the  will  is  silent  on  the  subject,  in- 
terest is  to  be  computed  on  the  legacy.  (Bradner  v.  Faulkner,  2 
Kernan,  472.  Glen  v.  Fisher,  6  /.  Ch.  R.  33.  Birdsall  v. 
Hewlett,  1  Paige,  33.)  It  is  the  general  rule  that  all  legacies 
draw  interest  after  they  are  payable ;  whether  the  time  limited 
for  their  payment  is  fixed  by  the  testator  in  his  will  or  by  the 
statute.  Interest  is  given  for  delay  of  payment ;  and  the  execu- 
tor cannot  be  considered  in  default  unless  he  withholds  payment 
after*  the  legacy  is  due.     (Hepburn  v.  Hepburn,  2  Bradf  74.) 

There  are  some  exceptions  to  this  rule.  One  is,  where  a  legacy 
is  given  by  a  parent  to  a  child,  and  no  other  provision  is  made  for 
its  maintenance,  interest  will  be  computed  from  the  death  of  the 
testator.  (Lupton  v.  Lupton,  2  J.  Ch.  R.  614.  Van  Bramer  v. 
Hoffman,  2  J.  Cases,  200.)  But  if  the  support  and  maintenance 
of  the  child  be  otherwise  provided  for  by  the  bounty  of  the  testa- 
tor, his  legacy,  like  other  legacies,  is  not  payable,  nor  does  it  draw 
interest  until  the  lapse  of  a  year  from  the  date  of  the  letters  testa- 
mentary. (  Williamson  v.  Williamson,  6  Paige,  298.  Burtis 
v.  Dodge,  1  Barb.  Ch.  R.  77.)     Another  exception  is,  where  a 


INCREASE  OF  SPECIFIC  LEGACIES.  391 

legacy  is  given  to  the  widow  in  lieu  of  dower.  In  such  a  case,  in- 
terest is  allowed  from  the  testator's  decease.  [Seymour  v.  Butler, 
3  Bradf.  193.)  So  also  an  annuity  bequeathed  generally,  com- 
mences from  the  testator's  death.  {Craig  v.  Craig,  3  Barb.  Ch. 
R.  7(3.) 

2.  Where  the  testator  directs  in  his  will  the  legacy  to  be  paid 
with  interest,  and  does  not  specify  the  time  from  which  it  is  to 
be  computed,  the  interest  does  not  commence  until  one  year  from 
the  date  of  the  letters  testamentary  or  of  administration.  In 
short,  it  commences  from  the  time  when  the  legacy  would  have 
been  payable,  if  the  time  of  payment  had  not  been  fixed  by 
the  will.  (2  Sim.  fy  Stu.  490.  Lawrence  v.  Embree,  3  Bradf. 
364.) 

Where  there  is  a  specific  bequest  of  bank  stock,  the  legatee  is 
entitled  to  the  dividends  which  accrued  after  the  death  of  the  tes- 
tator. {Barrington  v.  Tristam,  6  Yes.  349.)  It  is  otherwise 
where  bank  stock  is  bequeathed  by  a  general  legacy  ;  and  the 
rule  is  not  altered,  in  this  respect,  in  favor  of  a  bequest  to  a  widow 
in  lieu  of  dower.     ( Tifft  v.  Porter,  4  Seld.  516.) 

A  specific  legatee  of  mares,  cows,  or  ewes,  is  entitled  to  the 
brood  fallen  between  the  death  of  the  testator  and  the  assent  of 
the  executor  to  the  legacy.  ( Went.  Ex.  445.)  The  reason  is, 
the  assent,  when  given,  has  relation  back  to  the  time  of  the  testa- 
tor's death,  as  has  been  before  shown. 

There  are  cases  which  hold  that  legacies  charged  on  land,  when 
no  time  of  payment  is  mentioned,  draw  interest  from  the  death  of 
the  testator,  (  Van  Bramer  v.  Hoffman,  2  John.  Cases,  200,)  on 
the  principle  that  land  yields  rents  and  profits.  But  the  authority 
of  this  case  may  well  be  questioned,  as  that  was  not  a  point  neces- 
sary to  be  decided,  and  the  contrary  doctrine  is  held  in  England. 
{Toller,  324.     Pearson  v.  Pearson,  1  Sch.  tj-  Lef.  10.) 

If  land  is  devised  subject  to  the  payment  of  legacies,  the  devi- 
see, after  accepting  the  devise,  is  personally  liable  for  the  legacy  ; 
and  he  must  pay  interest  on  it  from  the  time  it  was  payable, 
whether  it  was  demanded  or  not.     ( Glen  v.  Fisher,  6  John.  Ch. 


392  CUAKGE  OF  LEGACY  ON  LAND. 

R.  33.     Birdsall  v.  Hewlett,  1  Paige,  33.     Tole  v.  Hardy,  6 
Cowen,  333.) 

Where  real  estate  is  devised  subject  to  the  payment  of  certain 
legacies,  and  the  devisee  refuses  to  accept  the  devise  and  pay  the 
legacies,  the  land  descends  to  the  heirs,  and  the  legatees  are  en- 
titled to  pursue  it  in  their  hands  in  order  to  obtain  their  legacies. 
And  a  court  of  equity  will  give  them  relief  for  this  purpose.  The 
intent  of  the  testator  cannot  otherwise  be  carried  into  effect. 
{Birdsall  v.  Hewlett,  supra.  Harris  v.  Fly,  7  Paige,  421.) 
The  remedy  of  the  legatee  in  such  a  case  is  in  equity,  and  cannot 
be  asserted  in  the  surrogate's  court. 

With  regard  to  the  words  necessary  to  create  a  legacy  a  charge 
on  real  estate,  a  few  words  will  be  added  to  what  has  been  said 
with  respect  to  a  charge  of  debts  on  real  estate.  (*S'ee  chapter  1 
of  part  III,  section  2,  pages  328,  9.)  A  legacy  is  never  charged 
on  the  real  estate  of  the  testator,  unless  the  intention  of  the  testa- 
tor to  that  effect  is  expressly  declared  in  the  will,  or  is  clearly  to 
be  inferred  by  the  language  and  disposition  of  the  instrument. 
(Lupton  v.  Lupton,  2  John.  Ch.  R.  614.)  An  express  charge  is, 
where  the  testator  in  terms  charges  the  legacy  on  his  real  estate, 
or  directs  it  to  be  made  out  of  his  real  estate,  or  the  like.  An 
implied  charge  is  where  an  estate,  consisting  of  real  and  personal 
property,  is  given  by  will  to  a  person  who  is  directed  to  pay  the 
legacy  out  of  the  estate.  The  legacy  is,  in  such  a  case,  an  equitable 
charge  on  the  real  estate ;  but  still  the  personal  estate  is  the  pri- 
mary fund  for  its  payment ;  and  the  legatee  cannot  resort  to  the 
real  estate  in  the  hands  of  the  purchasers  from  the  devisee,  without 
showing  that  the  personal  property  has  been  properly  exhausted, 
or  that  those  who  are  accountable  for  it  are  irresponsible.  {Dodge 
v.  Manning,  11  Paige,  334.     Harris  v.  Fly,  7  Paige,  421:) 

The  usual  residuary  clause  in  a  will,  inserted  to  prevent  an  in- 
testacy, as,  UI  give  all  the  rest  and  residue  of  my  estate,  real  and 
personal,  not  before  devised,"  is  not  sufficient  for  this  purpose. 
{Lupton  v.  Lupton,  supra.)  Where  a  testator  directs  his  debts 
and  legacies  to  be  first  paid,  and  then  devises  real  estate,  or  where 
he  devises  the  remainder  of  his  estate,  real  and  personal,  after 


REFUNDING  LEGACIES.  393 

payment  of  debts  and  legacies ;  or  devises  real  estate  after  pay- 
ment of  debts  and  legacies,  it  has  been  held  that  the  real  estate 
was  charged.  So,  too,  where  the  devisee  of  real  estate  is  appointed 
executor,  and  is  expressly  directed  to  pay  debts  and  legacies,  the 
charge  will  be  created.  {Reynolds  v.  Reynolds,  2  Smith,  16  N. 
Y.  R.  259,  and  the  cases  there  collected.)  So,  also,  in  Lewis  v. 
Darling,  16  How.  U.  S.  Rep.  1-9,  the  testator  left  to  his  daugh- 
ter all  of  his  property  of  every  kind,  which  might  remain  after  the 
antecedent  bequests  and  devises  in  his  will  had  been  paid,  (page 
9  of  the  opinion  of  Wayne,  J.,)  the  legacies  and  debts  were  well 
charged.  *     (And  see  Rafferty  v.  Clark,  1  Bradf.  473.) 

But  though  the  real  estate  be  well  charged,  yet  the  personal 
estate  is  the  proper  fund  for  the  payment  of  debts  and  legacies, 
and  is  to  be  first  applied  before  charging  the  real  estate.  (M'Kay 
v.  Green,  3  John.  Ch.  R.  56.  Lupton  v.  Lupton,  supra.  Kel- 
sey  v.  Western,  2  Comst.  500.)  Indeed,  where  the  personal 
estate  is  not  in  terms  exonerated,  and  is  not  absolutely  bequeathed 
by  the  will,  it  will  be  deemed  the  primary  fund  for  the  payment 
of  the  legacies,  although  the  latter  are  expressly  charged  on  the 
devisees.  The  charge  in  such  a  case  is  in  aid.  and  not  in  exoner- 
ation of  the  personal  estate.  (Hoes  v.  Van  Hoesen,  1  Comst.  120, 
off.  1  Barb.  Ch.  R.  379.) 

There  are  certain  circumstances  under  which  legatees  are  bound 
to  refund  their  legacies.  They  have  been  adverted  to  in  a  pre- 
vious chapter.  If  a  bond  has  been  taken  from  the  legatee  in  pur- 
suance of  2  R.  8.  90,  §  44,  the  most  convenient  remedy,  in  case 
the  contingency  therein  provided  for  occurs,  is  at  law,  by  action 
on  the  bond.  There  is  also  a  remedy  by  the  creditor  and  other 
legatees  in  equity  in  such  cases.  (Lupton  v.  Lupton,  2  John. 
Ch.  R.  614.)  If  the  executor  has  pursued  the  course  pointed  out 
by  the  statute,  for  the  presentation  of  claims  against  the  estate, 
and  which  has  been  described  in  a  previous  chapter,  such  creditors 

*  In  Tracy  v.  Tracy,  15  Barb.  S.  C.  R.  503,  at  special  term,  a  different  rule 
was  adopted.  As  the  will  is  not  set  out  in  the  report,  the  accuracy  of  the  opinion 
cannot  be  tested,  though  the  case  may  have  been,  and  probably  was  rightly  decided. 
The  reasons  on  which  it  is  based  by  the  learned  judge  cannot  be  supported  by  the 
cases,  and  were  disapproved  by  the  court  of  appeals  in  Reynolds  v.  Reynolds, 
supra,  page  261. 

50 


394  PAYMENT  OF  RESIDUE. 

of  the  testator  as  fail  to  exhibit  their  claims,  according  to  the 
notice,  will  be  driven  to  their  action  against  the  legatees  or  distribu- 
tees to  whom  the  estate  has  been  paid  over  by  the  executor.  As 
this  remedy  cannot  be  asserted  in  the  surrogate's  court,  the  further 
notice  of  it  does  not  belong  to  this  treatise. 

Section  VI. 

Of  the  payment  of  the  residue,  and  of  the  rights  of  the  executor 
thereto,  where  there  is  no  residuary  legatee. 

The  residue,  generally  speaking,  embraces  not  only  what  the 
testator  did  not  attempt  to  dispose  of,  but  every  part  of  his  prop- 
erty which,  by  lapse  or  otherwise,  is  not  effectually  bequeathed  to 
others.  {King  v.  Strong,  9  Paige,  94.  James  v.  James,  4 
Paige,  115.  Van  Kleek  v.  The  Reformed  Dutch  Church,  6 
Paige,  600,  aff.  20  Wend.  457.  Bowers  v.  Smith,  10  Paige,  193. 
Banks  v.  Phelan,  4  Barb.  80.)  If  the  residue  be  given  to  several 
in  common,  and  the  legacy  of  one  lapses,  or  is  revoked  as  to  him. 
his  share  goes  to  the  next  of  kin.  {Floyd  v.  Barker,  1  Paige, 
480.  Hart  v.  Marks,  4  Bradf  161.)  It  would  be  otherwise  if 
bequeathed  to  several  in  joint  tenancy.  In  such  a  case,  the  sur- 
vivors would  take  the  whole.  (  Webster  v.  Webster,  2  P.  Wins. 
347.) 

It  was  a  principle  of  the  common  law,  from  the  earliest  times, 
that  the  whole  personal  estate  of  the  testator  vested,  at  his  death, 
in  his  executor.  It  followed,  from  this  principle,  that  whatever 
was  not  effectually  bequeathed  to  others,  belonged,  after  the  pay- 
ment of  debts,  to  the  executor  beneficially.  {AWy  Gen.  v.  Hooker 
2  P.  Wins.  338.)  The  same  rule  originally  prevailed,  as  well  in 
equity  as  at  law.  But  the  court  of  chancery,  at  an  early  day,  laid 
hold  of  the  peculiar  wordings  of  the  will  to  find  indications  of  a 
contrary  intention  of  the  testator  ;  as,  where  a  legacy  was  given  to 
him  for  his  care  and  trouble,  or  where  he  was  appointed  a  trustee, 
and  the  like.  That  court  struggled  to  convert  the  executor  into  a 
trustee  of  the  unbequeathed  surplus,  for  the  benefit  of  the  next  of 
kin,  and  thus  prevent  his  holding  it  for  his  own  benefit. 

The  principles  of  equity  finally  triumphed,  and  became  the  law. 


DISTRIBUTION.  395 

In  this  state,  by  the  revised  statutes,  it  is  enacted  that  the  sur- 
plus, after  paying  debts  and  legacies,  shall  be  distributed  to  the 
widow  and  next  of  kin,  in  the  manner  therein  stated,  and  as  will 
be  hereafter  considered.  (2  R.  S.  96,  §  75.)  Hence,  the  exec- 
utor, in  every  instance,  becomes  a  trustee  for  the  widow  and  next 
of  kin,  of  the  unbequeathed  surplus.  He  takes  nothing  benefi- 
cially, unless  named  as  a  legatee.  This  makes  the  executor  a  mere 
officer,  nominated  by  the  testator,  and  appointed  by  the  court  to 
execute  the  trusts  in  the  will,  and  to  discharge,  out  of  the  effects 
of  the  deceased,  the  claims  which  individuals  may  have  against 
the  testator  in  his  lifetime.  The  personal  property,  money  and 
choses  in  action,  and  chattels  of  all  kinds,  are  still  devolved  upon 
him ;  but  he  takes  them  in  a  representative  capacity.  He  holds 
the  estate  in  trust  for  the  various  purposes  of  the  law.  His  first 
duty,  therefore,  is  to  pay  the  funeral  charges  and  debts  of  the  de- 
ceased ;  then  the  specific  and  general  legacies,  if  there  be  assets  ; 
and  then  to  distribute  the  remainder,  if  it  be  not  bequeathed,  to 
the  persons  entitled  to  it  under  the  statute  of  distributions. 

Section  VII. 

Of  distribution,  and  of  the  duties  of  an  executor  or  administra- 
tor with  respect  thereto. 

Whatever  may  have  been  the  ancient  right  of  the  executor  or 
administrator  to  the  personal  estate  of  deceased  persons,  it  has 
not  been  doubted,  that  since  the  statute  of  distributions  of  22  and 
23  Charles  2,  it  is  their  duty,  after  paying  the  funeral  charges 
and  debts,  to  distribute  the  remainder  to  the  legatees  according  to 
the  will,  and  the  balance  undisposed  of  to  the  persons  contempla- 
ted by  the  statute,  as  in  cases  of  intestacy.  The  statute  of  Charles 
2  forms  the  basis  of  the  legislation  of  this  state,  and  probably 
of  most  of  the  others  on  this  subject.  It  is  said  to  have  been 
borrowed  from  the  118th  novel  of  Justinian,  and  except  in  some 
few  instances  mentioned  therein,  to  be  governed  and  construed  by 
the  rules  of  the  civil  law.*     (2  Kent's  Com.  422.) 

*  The  cases  arising  under  the  English  statute  of  distributions  are  reviewed  by- 
Mr.  Justice  Williams  in  his  treatise  on  the  law  of  executors,  &c,  2  vol.  1271 
et  seq.,  and  an  elaborate  note  in  the  last  American  edition,  has  laid  before  us  most 


396  DISTRIBUTION. 

The  existing  law  of  this  state  makes  the  following  provisions  on 
the  subject  now  under  consideration.  To  render  our  subsequent 
remarks  intelligible,  it  will  be  necessary  to  insert  the  enactment 
verbatim.     (2  R.  S.  96,  §  75.) 

"  Where  the  deceased  shall  have  died  intestate,  the  surplus  of 
his  personal  estate  remaining  after  payment  of  debts ;  and  where 
the  deceased  left  a  will,  the  surplus  remaining  after  the  payment 
of  debts  and  legacies,  if  not  bequeathed,  shall  be  distributed  to  the 
widow,  children  or  next  of  kin  of  the  deceased,  in  manner  fol- 
lowing : 

"1.  One-third  part  thereof  to  the  widow,  and  all  the  residue  by 
equal  portions  among  the  children,  and  such  persons  as  legally 
represent  such  children,  if  any  of  them  shall  have  died  before  the 
deceased : 

"  2.  If  there  be  no  children,  nor  any  legal  representatives  of 
them,  then  one  moiety  of  the  whole  surplus  shall  be  alloted  to  the 
widow,  and  the  other  moiety  shall  be  distributed  to  the  next  of 
kin  of  the  deceased,  entitled  under  the  provisions  of  this  section  : 

"  3.  If  the  deceased  leave  a  widow  and  no  descendant,  parent, 
brother  or  sister,  nephew  or  niece,  the  widow  shall  be  entitled  to 
the  whole  surplus  ;  but  if  there  be  a  brother  or  sister,  nephew  or 
niece,  and  no  descendant  or  parent,  the  widow  shall  be  entitled  to 
a  moiety  of  the  surplus  as  above  provided,  and  to  the  whole  of  the 
residue  where  it  does  not  exceed  two  thousand  dollars  ;  if  the  resi- 
due exceed  that  sum,  she  shall  receive,  in  addition  to  her  moiety, 
two  thousand  dollars ;  and  the  remainder  shall  be  distributed  to 
the  brothers  and  sisters  and  their  representatives : 

"4.  If  there  be  no  widow,  then  the  whole  surplus  shall  be  dis- 
tributed equally  to  and  among  the  children,  and  such  as  legally  re- 
present them : 

"  5.  If  there  be  no  widow  and  no  children,  and  no  representatives 
of  a  child,  then  the  whole  surplus  shall  be  distributed  to  the  next 
of  kin,  in  equal  degree  to  the  deceased  and  the  legal  represen- 
tatives : 

"  6.  If  the  deceased  shall  leave  no  children  and  no  representa- 

of  the  American  cases  on  the  same  subject.  My  examination  of  the  subject  is 
mainly  confined  to  so  much  of  tho  law  of  this  state,  as  is  usually  administered  in 
surrogates'  courts. 


DISTRIBUTION.  397 

tives  of  them,  and  no  father,  and  shall  leave  a  widow  and  a  mother, 
the  moiety  not  distributed  to  the  widow  shall  be  distributed  in 
equal  shares  to  his  mother  and  brothers  and  sisters,  or  the  repre- 
sentatives of  such  brothers  and  sisters  ;  and  if  there  be  no  widow, 
the  whole  surplus  shall  be  distributed  in  like  manner  to  the  mother 
and  to  the  brothers  and  sisters,  or  the  representatives  of*such 
brothers  and  sisters : 

"  7.  If  the  deceased  leave  a  father  and  no  child  or  descendant, 
the  father  shall  take  a  moiety,  if  there  be  a  widow,  and  the  whole, 
if  there  be  no  widow  : 

"  8.  If  the  deceased  leave  a  mother  and  no  child,  descendant, 
father,  brother,  or  sister,  or  representative  of  a  brother  or  sister,  the 
mother,  if  there  be  a  widow,  shall  take  a  moiety  ;  and  the  whole,  if 
there  be  no  widow.  And  if  the  deceased  shall  have  been  an  illegi- 
timate and  have  left  a  mother  and  no  child  or  descendant  or  widow, 
such  mother  shall  take  the  whole,  and  shall  be  entitled  to  letters 
of  administration  in  exclusion  of  all  other  persons,  in  pursuance 
of  the  provisions  of  this  chapter.  And  if  the  mother  of  such 
deceased  shall  be  dead,  the  relatives  of  the  deceased  on  the  part  of 
the  mother  shall  take  in  the  same  manner  as  if  the  deceased  had 
been  legitimate,  and  be  entitled  to  letters  of  administration  in  the 
same  order :     (As  amended  in  1845,  ch.  236.) 

"  9.  Where  the  descendants  or  next  of  kin  of  the  deceased,  en- 
titled to  share  in  his  estate,  shall  be  all  in  equal  degree  to  the  de- 
ceased, their  shares  shall  be  equal : 

"  10.  When  such  descendants  or  next  of  kin  shall  be  of  unequal 
degrees  of  kindred,  the  surplus  shall  be  apportioned  among  those 
entitled  thereto,  according  to  their  respective  stocks;  so  that 
those  who  take  in  their  own  right  shall  receive  equal  shares,  and 
those  who  take  by  representation  shall  receive  the  share  to  which 
the  parent  whom  they  represent,  if  living,  would  have  been  en- 
titled : 

"11.  No  representation  shall  be  admitted  among  collaterals, 
after  brothers'  and  sisters'  children  : 

"  12.  Relatives  of  the  half  blood  shall  take  equally  with  those 
of  the  whole  blood  in  the  same  degree ;  and  the  representatives  of 
such  relatives  shall  take  in  the  same  manner  as  the  representatives 
of  the  whole  blood  : 


398  DISTRIBUTION— ADVANCEMENT. 

"13.  Descendants  and  next  of  kin  of  the  deceased,  begotten  be- 
fore his  death,  but  born  thereafter,  shall  take  in  the  same  manner 
as  if  they  had  been  born  in  the  lifetime  of  the  deceased,  and  had 
survived  him." 

The  doctrine  of  advancement  is  intimately  connected  with  that 
of  distribution,  and  is  thus  provided  for  in  the  four  sections  fol- 
lowing the  above  75th : 

"  If  any  child  of  such  deceased  person  shall  have  been  advanced 
by  the  deceased,  by  settlement  or  portion  of  real  or  personal  estate, 
the  value  thereof  shall  be  reckoned  with  that  part  of  the  surplus 
of  the  personal  estate  which  shall  remain  to  be  distributed  among 
the  children  ;  and  if  such  advancement  be  equal  or  superior  to  the 
amount,  which,  according  to  the  preceding  rules,  would  be  dis- 
tributed to  such  child,  as  his  share  of  such  surplus  and  advance- 
ment, then  such  child  and  his  descendants  shall  be  excluded  from 
any  share  in  the  distribution  of  such  surplus. 

"  But  if  such  advancement  be  not  equal  to  such  amount,  such 
child  or  his  descendants,  shall  be  entitled  to  receive  so  much  only 
as  shall  be  sufficient  to  make  all  the  shares  of  all  the  children  in 
such  surplus  and  advancement  to  be  equal  as  near  as  can  be  esti- 
mated. 

"  The  maintaining  or  educating,  or  the  giving  of  money  to  a  child, 
without  a  view  to  a  portion  or  settlement  in  life,  shall  not  be  deemed 
an  advancement  within  the  meaning  of  the  two  last  sections  ;  nor 
shall  those  sections  apply  in  any  case  where  there  shall  be  any 
real  estate  of  the  intestate  to  descend  to  his  heirs.  (See  1  R.  S. 
754,  providing1  for  such  cases.) 

"  The  preceding  provisions  respecting  the  distribution  of  estates 
shall  not  apply  to  the  personal  estates  of  married  women ;  but 
their  husbands  may  demand,  recover  and  enjoy  the  same  as  they 
are  entitled  by  the  rules  of  the  common  law." 

The  foregoing  75th  section  was  taken  from  the  former  statute  of 
distributions,  which  was  copied  from  the  English  statutes  on  the 
same  subject.  (1  R.  L.  of  1813,  pp.  313,  314.)  In  the  present 
statute  the  word  "  deceased"  is  substituted  for  "  intestate,"  but  it 
is  not  supposed  that  any  different  rule  of  construction  was  intend- 
ed to  be  introduced  by  this  change  of  phraseology.  The  meaning 
i<  the  same  in  both  cases. 

Numerous  questions  may  arise  under  the  statute  of  distributions 


MARRIED  FEMALE— ADVANCEMENT.  399 

with  respect  to  the  riglit  of  the  husband  to  the  personal  estate  of 
his  wife.  The  statute  expressly  reserves  the  common  law  right  of 
the  husband  to  administer  on  her  estate  to  his  own  benefit.  That 
right  has  been  regulated  by  another  provision  of  the  law,  else- 
where noticed,  whereby  the  husband  becomes  liable  for  her  debts  to 
the  extent  of  the  assets  received  by  him,  (2  R.  S.  75,  §§  29,  30,) 
and  beyond  that  is  entitled  to  the  property  absolutely.  (SI turn- 
way  v.  Cooper,  16  Barb.  556.) 

The  act  for  the  more  effectual  protection  of  the  property  of  mar- 
ried women,  passed  in  1848  and  amended  in  1849,  (L.  of  1848, 
p.  307;  L.  of  1849,  p.  528.)  merely  allows  any  married  female  to 
take  by  inheritance  or  by  gift,  grant,  devise  or  bequest,  from  any 
person  other  than  her  husband,  and  hold  to  her  sole  and  separate 
use,  and  convey  and  devise  real  and  personal  property,  and  any  in- 
terest or  estate  therein,  and  the  rents,  issues  and  profits  thereof,  in 
the  same  manner  and  with  the  like  effect  as  if  she  were  unmarried  ; 
and  the  same  are  not  subject  to  the  disposal  of  the  husband  nor 
liable  for  his  debts.  But  the  statute  is  silent  as  to  the  disposition 
of  her  property,  in  case  she  dies  intestate.  It  is  left  in  such  a 
case  to  be  governed  by  the  rules  which  previously  prevailed  with 
respect  to  the  personal  estate  of  a  deceased  married  female.  If 
her  husband  survives  her,  he  takes  as  administrator  to  his  own  use, 
subject  to  her  debts,  what  she  has  not  effectually  bequeathed. 
(McCosker  v.  Golden,  1  Bradf.  64.  Shumway  v.  Cooper,  supra.) 

By  renouncing  administration,  a  widow,  or  any  other  person  in- 
terested, does  not  relinquish  any  right  to  a  distributive  share  of 
the  estate  of  the  deceased.  But  the  title  of  a  widow,  under  the 
statute,  may  be  barred  by  a  marriage  settlement,  before  marriage, 
excluding  her  from  her  distributive  share  of  her  husband's  per- 
sonal estate.     (Clancy's  Rights  of  Women,  510  et  seq.) 

Questions  arising  out  of  the  law  of  marriage  and  divorce  may 
sometimes  incidentally  arise  before  the  surrogate,  on  decreeing 
distribution,  but  the  reader  is  referred  to  treatises  on  this  subject. 
{See  Wait  v.  Wait,  4  Comst.  95.  Burr  v.  Burr,  10  Paige,  25, 
affirmed  7  Hill,  207.) 

With  regard  to  the  rights  of  children  and  their  representatives, 
and  the  doctrine  of  advancement,  a  few  words  will  be  added. 


400  EIGHTS  OF  CHILDREN. 

Persons  are  said  to  take  per  capita  when  they  take  in  their 
own  right.  When  all  the  next  of  kin  are  of  the  same  degree  of 
kindred  to  the  deceased,  they  take  equal  shares  per  capita.  Thus, 
if  the  father  have  three  children,  John,  Henry  and  Sarah,  and 
they  all  die  hefore  their  father,  John  leaving  one  child,  Henry  two. 
and  Sarah  four,  and  afterwards  the  father  dies  intestate  ;  in  that 
case  all  his  grandchildren  shall  have  an  equal  share  ;  for  as  his 
children  are  all  dead,  their  children  take  as  next  of  kin  per  capita, 
and  not  by  representation.  In  the  case  supposed,  the  seven 
grandchildren  will  each  take  a  one-seventh  part. 

Persons  are  said  to  take  per  stirpes  when  they  take  not  in  their 
own  right  but  by  representation.  Thus,  if  the  father  have  three 
children,  John,  Henry  and  Sarah,  and  John  dies  leaving  two  chil- 
dren, Henry  dies  leaving  three  children,  and  Sarah  alone  survives 
her  father,  who  dies  intestate  ;  in  this  case,  Sarah  takes  in  her 
own  right  per  capita,  one-third  ;  the  three  children  of  Henry  per 
stirpes,  as  representing  the  stock  of  their  father,  another  third ; 
and  the  two  children  of  John,  in  like  manner,  the  remaining  third. 

This  right  of  representation  extends,  by  the  statute,  no  further 
than  to  brothers'  and  sisters'  children.  Thus,  we  will  suppose 
John,  Henry  and  Sarah  to  be  the  three  children  of  the  intestate. 
John  dies  in  the  lifetime  of  his  father,  -leaving  two  children  :  Henry 
dies  in  his  father's  lifetime,  leaving  two  children  and  four  grand- 
children, the  offspring  of  a  deceased  son.  The  ancestor  at  length 
dies  intestate,  his  daughter  Sarah  having  survived  him.  In  this 
case,  therefore,  Sarah  in  her  own  right  takes  one-third  of  the  per- 
sonal estate  of  her  father ;  the  two  children  of  John,  in  right  of 
their  father,  take  another  third ;  and  the  two  children  of  Henry, 
in  right  of  their  father,  the  remaining  third.  The  grandchildren 
of  Henry,  being  the  offspring  of  his  deceased  son,  take  nothing. 
Their  father,  had  he  lived,  would  have  been  entitled  to  one-third 
of  the  share  belonging  to  his  father  Henry  by  representation, 
but  they,  being  one  degree  further  removed,  cannot  make  out 
their  kindred  except  through  a  double  representation.  They  are 
of  kin  to  the  intestate,  indeed,  but  not  next  of  kin,  nor  within  the 
class  of  representation  contemplated  by  the  statute.  Their  rela- 
tionship to  Sarah,  the  nearest  of  kin,  is  that  of  brother's  grand- 
children.    The  father  of  one  is  the  great  grandfather  of  the  other. 


ADVANCEMENT— DISTRIBUTION.  401 

Sarah  is  their  great  aunt.  Nor  would  the  result  have  been  altered, 
as  to  Henry's  grandchildren,  had  Sarah  also  died  in  the  lifetime 
of  her  father,  either  "with  or  without  children. 

An  advancement  is  not  fraudulent  as  to  creditors  if  the  parent, 
in  good  faith,  retain  in  his  own  hands  property  sufficient  to  pay 
all  his  debts.  (  Van  Wyck  v.  Seward,'  6  Paige,  62 ;  affirmed, 
18  Wend.  375.) 

In  England  it  is  said  that  the  provision  of  the  statute  of  distri- 
butions as  to  advancement  applies  only  to  the  distribution  of  the 
estates  of  intestate  fathers,  and,  therefore,  an  advancement  by  a 
mother,  being  a  widow,  shall  not  be  brought  into  hotchpot.  (  Wm's 
Exrs.  1286,  citing  Holt  v.  Frederick,  2  P.  Wms.  357.)  The 
reason  of  this,  as  assigned  by  Lord  Ch.  King,  is,  that  the  statute 
of  distributions  was  grounded  on  the  custom  of  London,  which 
never  affected  a  widow's  personal  estate,  and  that  the  act  seemed 
only  to  include  those  within  the  clause  of  hotchpot,  who  are  capa- 
ble of  having  a  wife  as  well  as  children.  The  reason  for  this  dis- 
tinction is  not  applicable  to  our  statute.  If  it  is  construed  with 
the  corresponding  statute  relative  to  advancement  of  real  property, 
as  it  should  be.  no  reason  is  perceived  why,  under  our  statute,  an 
advancement  made  by  the  widowed  mother  to  one  of  her  children, 
should  not  be  brought  into  hotchpot  as  well  as  when  made  by  the 
father.     (1  R.  S.  754.) 

The  principle  on  which  the  law  relative  to  advancements  rests 
does  not  require  that  any  thing  should  be  taken  from  the  child  who 
has  thus  been  the  object  of  his  parent's  bounty.  He  is  entitled  to 
hold  what  he  has  got ;  but  when  he  comes,  on  the  death  of  his 
parent,  to  ask  a  portion  of  the  remainder  of  the  estate,  it  is  re- 
quired, by  the  clearest  principles  of  equity,  that  what  he  has 
already  received  as  an  intended  advancement,  should  be  brought 
into  hotchpot.  If  that  be  equal  to,  or  greater  than  the  shares 
which  fall  to  the  other  children,  he  will  be  entitled  to  no  more, 
though  not  required  to  refund  any  thing.  If  it  falls  short  of  his 
portion,  he  receives  from  the  estate  enough  more  to  make  him 
equal  with  the  rest.     (Edwards  v.  Freeman,  2  P.  Wms.  443.) 

It  was  said  by  Sir  Win.  Grant,  in  Walton  v.  Walton,  14  Ves. 
324,  that  the  provision  in  the  statute  of  distributions  applies  only 
51 


402  RIGHTS  OF  NEXT  OF  KIN. 

to  the  caso  of  actual  intestacy ;  and  where  there  is  an  executor, 
and  consequently  a  complete  will,  though  the  executor  may  be  de- 
clared a  trustee  for  the  next  of  kin,  yet  they  take  as  if  the  residue 
had  been  actually  given  to  them.  Therefore  the  child,  advanced 
by  his  father  in  his  lifetime,  could  not  be  called  to  bring  his 
share  into  hotchpot.  There  is  nothing  in  our  statute  which 
would  lead  to  a  different  result.  A  testator  may  dispose  of  his 
property  as  he  pleases.  If  he  makes  an  unequal  distribution  of 
his  estate  among  his  children  by  his  will,  and  dies  possessed  of 
property  not  disposed  of,  such  unbequeathed  estate  must  be  distrib- 
uted equally,  without  reference  to  the  mode  in  which  he  has  made 
his  will. 

There  are  several  contingencies  in  the  statute,  on  the  happening 
of  which  the  whole  or  some  portion  of  the  estate  must  be  distrib- 
uted to  the  next  of  kin  of  the  deceased.  To  ascertain  who  these 
next  of  kin  are,  we  are  governed  byjthe  same  rules  of  consanguinity 
as  those  which  determine  the  right  of  administration  in  cases  of 
intestacy.  (2  Bl.  Com.  515.  Toller,  381.  2  Burn's  E.  L.,  quarto 
ed.  713,  title  Wills,  Distribution.  Hurtin  v.  Proal,  3  Bradf. 
414.)  It  matters  not  how  distant  they  are  from  the  common 
ancestor,  whether  children,  grandchildren,  or  great  grandchildren, 
or  whether  they  are  in  the  ascending  or  descending  line. 

The  party,  to  be  entitled,  must  be  of  kin.  By  this  is  meant  a 
relationship  by  blood,  and  not  merely  the  conventional  relation- 
ship created  by  intermarriage.  Hence  the  mother-in-law  or  step- 
mother of  an  intestate,  not  being  of  his  blood,  can  claim  nothing 
under  the  statute  of  distributions.  Nor,  upon  the  same  principle, 
can  a  brother-in-law  or  sister-in-law. 

The  object  of  the  statute  is  to  make  an  equal  distribution  among 
those  of  the  same  degree  of  kindred  to  the  intestate,  exceptwhere 
a  different  rule  is  prescribed.  In  computing  the  propinquity  of 
kindred  we  are  governed  by  the  rules  of  the  civil  law,  by  which 
the  intestate  himself  is  the  terminus  a  quo,  the  several  degrees  are 
numbered.  Under  that  rule  the  father  stands  in  the  first  degree, 
the  grandfather  and  grandson  in  the  second ;  and  in  the  collateral 
line  the  computation  is  from  the  intestate  to  the  common  ancestor 
of  the  intestate  and  the  person  whose  relationship  is  sought  after, 


EIGHTS  OF  NEXT  OF  KIN.  403 

and  then  down  to  that  person.  According  to  that  rule  the  intes- 
tate and  his  brother  are  related  in  the  second  degree,  the  intestate' 
and  his  uncle  in  the  third  degree.  (2  Kent's  Com.  422,  Bards'  E. 
L.  supra.) 

The  father  succeeds  to  the  whole  personal  estate  of  his  son  who 
dies  intestate,  leaving  no  widow  or  descendants,  in  exclusion  of  the 
brothers  and  sisters.  The  mother  would  also  have  succeeded  aa 
against  the  collaterals,  but  for  a  saving  clause,  which  excludes  her 
from  all  but  a  ratable  share.  The  object  of  her  exclusion  was,  to 
prevent  her  from  transmitting  the  whole  estate,  in  case  of  a  re- 
marriage, into  another  line,  in  entire  exclusion  of  the  brothers  and 
sisters ;  but  she  still  takes  the  whole  personal  estate  in  exclusion 
of  more  remote  relations  of  the  intestate.  In  the  case  of  an  ille- 
gitimate dying  intestate  and  unmarried,  there  was  formerly  an 
absolute  obstruction  of  the  course  of  succession ;  such  person  could 
transmit  to  his  lineal  descendants,  but  not  to  his  ancestors  or  col- 
lateral relatives.  {The  Public  Adm'r  v.  Hughes,  1  Bradf.  125.) 
But  in  this  state,  by  the  act  of  1845,  p.  257,  amending  the  8th 
subdivision  of  the  15th  section,  and  which  is  cited  at  large  in  a 
preceding  page,  the  mother  of  an  illegitimate,  who  dies  leaving  no 
child,  or  descendant,  or  widow,  takes  the  whole  personal  estate, 
and  is  entitled  to  letters  of  administration,  in  exclusion  of  all  other 
persons.  And  if  such  mother  be  dead,  the  relatives  of  the  de- 
ceased, on  the  part  of  the  mother,  take  in  the  same  manner  as  if 
the  deceased  had  been  legitimate,  and  are  entitled  to  letters  of 
administration  in  the  same  order. 

In  successions  to  personal  estate,  relatives  of  the  half  blood,  in 
equal  degrees  of  cognation  to  the  intestate,  take  equally  with  rela- 
tives of  the  whole  blood ;  and  they  also  take  by  representation, 
where  representation  would  be  allowed  among  relatives  of  the 
whole  blood.     (Hallet  v.  Hare,  5  Paige,  315.) 

The  grandmother  is  preferred  to  the  aunt,  not  because  she  is  in 
the  ascending  line,  but  because  she  is  nearer  of  kin,  according  to 
the  computation  of  the  civilians,  by  one  degree. 

The  9th  subdivision  of  the  75th  section,  it  has  been  seen,  pro- 
vides that  where  the  descendants,  or  next  of  kin  of  the  deceased 
entitled  to  share  in  his  estate,  shall  be  all  in  equal  degree  to  the  , 
deceased,  their  shares  shall  be  equal.     The  English  statute  con- 


404  CASE  OF  FOREIGN  DOMIOIL. 

tains  the  same  provision.  A  brother  of  the  intestate  and  a  grand- 
father of  the  intestate  are  equally  near  of  kin,  and  each  is  related 
in  the  second  degree.  By  a  literal  construction  of  the  act,  their 
shares  of  the  intestate's  personal  estate  would  be  equal.  But  it 
has  been  held  in  England,  for  more  than  a  century  before  the 
adoption  of  our  revised  statutes,  that  the  brother  of  the  intestate 
will  exclude  the  grandfather  of  the  intestate  ;  and  this,  Chancellor 
Kent  thinks,  is  the  better  construction  of  the  118th  novel  of  Jus- 
tinian. {Evelyn  v.  Evelyn,  3  Atk.  762,  764.  S.  C,  Ambler,  191, 
and  cases  there  cited.)  According  to  the  principle  which  usually 
prevails,  where  a  statute  of  the  mother  country  had  received  a 
uniform  construction  before  it  was  adopted  here,  it  retains  the 
construction  thus  given  to  it,  unless  there  is  some  plain  and  une- 
quivocal indication  of  a  coutrary  intention  in  the  adopting  act. 
This  construction  of  the  act  may  be  considered  as  an  exception  to 
the  general  rule,  founded  on  motives  of  convenience  and  policy. 

A  grandfather  will  exclude  an  uncle  or  aunt,  as  being  one  de- 
gree nearer  of  kin.  A  great  grandfather  is  entitled  to  an  equal 
distributive  share  with  an  uncle  or  aunt,  both  being  within  the 
same  degree.  (Blackborough  v.  Davis,  1  Salic.  38.  S.  C,  1  P. 
Wins.  41.) 

In  the  discussion  of  the  subject,  we  have  hitherto  taken  for 
granted  that  the  person  whose  estate  was  the  subject  of  distribu- 
tion was  domiciled  in  this  state.  If  such  were  not  the  fact ;  if  his 
residence  here  was  merely  temporary  or  casual,  and  his  permanent 
domicil  under  another  jurisdiction,  a  different  rule  prevails.  It 
was  well  remarked  by  the  learned  surrogate  of  New  York,  in  The 
Public  Administrator  v.  Hughes,  1  Bradf.  130,  that  it  has  be- 
come a  settled  principle  among  civilized  nations,  to  substitute  for 
the  domestic  rule  of  distribution  the  law  of  distribution  which  pre- 
vails in  the  country  where  the  deceased  was  domiciled  at  the  time 
of  his  death.  On  this  principle,  in  Burr  v.  Sherwood,  3  Bradf. 
85,  a  question  arose  between  the  administrator  of  a  married  woman 
and  the  administrator  of  her  deceased  husband  as  to  the  rule  of 
distribution  ;  and  it  was  held  to  be  according  to  the  law  of  Con- 
necticut, where  the  parties  were  married  and  domiciled  at  the  time 
of  their  death.  In  Churchill  v.  Prescott,  Id.  233,  the  distribution 
was  directed  to  be  made  according  to  the  law  of  New  Hampshire, 


CASE  OF  FOREIGN  DOMIOIL.  405 

where  the  deceased  was  domiciled  when  he  died.  In  Graham  v. 
The  Public  Administrator,  4  id.  127,  the  distribution  of  the 
estate  of  the  intestate,  who  died  at  the  marine  hospital  in  New 
York,  was  made  according  to  the  law  of  Scotland,  being  her  last 
domicil. 

The  rule,  as  settled  in  England  and  by  the  general  usage  of 
nations,  as  to  real  and  personal  property,  has  repeatedly  been 
declared  to  constitute  a  part  of  the  municipal  jurisprudence  of  this 
country.  The  rights  to  personal  property  are  regulated  by  the  laws 
of  the  country  where  the  deceased  lived ;  but  the  suits  to  enforce 
those  rights  must  be  governed  by  the  laws  of  that  country  in  which 
the  tribunal  is  placed.  (Dixon's  Ex.  v.  Ramsey's  Ex..  3  Cranch, 
319.) 

There  is  no  difficulty  in  the  principle  ;  the  only  embarrassment 
which  arises  is  as  to  the  facts  which  constitute  domicil  in  a  par- 
ticular case.  It  is  well  settled  that  every  person  must  have  a 
domicil  some  where.  A  domicil  can  only  be  acquired  by  residence 
with  the  intention  of  remaining  at  the  new  place  of  abode.  Inten- 
tion alone  is  not  sufficient ;  the  new  domicil  must  be  established 
animo  et  facto,  by  a  union  of  the  fact  and  intention.  (Graham 
v.  The  Public  Administrator,  4  Bradf.  127.  Story's  Conflict  of 
Laws,  §  41,  ch.  3.) 

There  is  no  fixed  or  definite  period  of  time  requisite  to  create  a 
domicil.  The  residence  to  create  it  may  be  short  or  long,  accord- 
ing to  circumstances.  It  depends  on  the  actual  or  presumed 
intention  of  the  party.  A  person  being  in  a  place  is  'prima  facie 
evidence  that  he  is  domiciled  there  ;  but  it  may  be  explained  and 
the  presumption  rebutted.  The  place  where  a  man  carries  on  his 
established  business,  or  professional  occupation,  and  has  a  home 
and  residence,  is  his  domicil,  and  he  has  all  the  privileges,  and  is 
bound  by  all  the  duties  flowing  therefrom.  Though  his  family 
reside  part  of  the  year  at  another  place,  such  place  is  regarded 
only  as  a  temporary  residence,  and  the  home  and  domicil  for  busi- 
ness takes  away  the  character  of  domicil  from  the  other.  The 
original  domicil  of  the  party  always  continues  till  he  has  fairly 
changed  it  for  another ;  and  if  a  party  has  two  temporary  domi- 
cils,  and  a  residence  in  each  alternately  of  equal  portions  of  time, 
the  rule  is,  that  the  place  where  the  party's  business  lies  should 


406  PAYMENT  OF  DISTRIBUTIVE  SHARES. 

be  considered  his  domicil.  {See  note,  2  Wins.  Ex.  1303.  2  Kent's 
Com.  429  et  seq.  Andrews  v.  Herriot,  4  Cow  en,  516  etseq.,  note 
of  Judge  Cowen,  where  the  cases  are  collected  and  examined.) 

With  regard  to  the  application  of  the  rule,  the  doctrine  is  that 
the  place  of  domicil  is  the  place  of  the  principal  administration, 
and  with  reference  to  which  the  distribution  amongst  the  next  of 
kin  or  legatees  is  made.  {Churchill  v.  Prescott,  3  Bradf.  233.) 
But  a  foreign  executor  or  administrator  cannot  sue  in  our  courts 
without  obtaining  letters  testamentary,  or  of  administration,  aux- 
iliary to  the  grant  abroad.  {Morrell  v.  Dickey,  1  /.  Ch.  R.  153. 
McNamara  v.  Dwyer,  7  Paige,  239.)  If  a  foreign  executor  or 
administrator  desires  to  reach  funds  in  this  state  through  the 
instrumentality  of  our  courts,  letters  should  be  granted  by  the 
surrogate  auxiliary  to  the  main  grant,  and  the  person  so  appointed 
should  remit  the  funds  collected  by  him  to  the  principal  executor 
or  administrator,  to  be  distributed  according  to  the  law  of  the 
domicil  of  the  deceased.  But  before  remitting  such  funds  he  is 
bound  first  to  apply  the  assets  found  here  to  pay  debts  due  to  our 
own  citizens.  {Churchill  v.  Prescott,  supra.  Dawes  v.  Head,  3 
Pick.  128.) 

If  a  foreign  executor  brings  assets  into  this  state,  it  was  held 
by  the  chancellor  in  McNamara  v.  Dwyer,  supra,  that  he  could 
be  compelled  to  account  in  a  court  of  equity  here  for  the  trust 
funds,  at  the  suit  of  creditors  in  this  state,  without  taking  out 
letters  of  administration  on  the  estate  of  the  deceased. 

In  concluding  this  section,  it  remains  to  speak  of  the  payment 
of  the  distributive  share,  the  persons  entitled  to  receive  it,  and 
the  time  when  it  is  payable. 

The  statute  of  distributions  may  be  considered  as  the  last  will 
and  testament  of  every  person  dying  intestate  in  whole  or  in  part, 
made  for  the  benefit  of  his  widow  and  next  of  kin,  by  the  legisla- 
ture. The  right  to  it  vests  on  the  death  of  the  intestate,  and 
should  the  person  entitled  die  before  distribution  made,  his  dis- 
tributive share  will  vest  in  his  personal  representatives,  to  be  dis- 
tributed to  his  next  of  kin. 

It  is  as  important  for  an  executor  or  administrator  to  ascertain 
the  true  person  authorized  to  receive  a  distributive  share  of  the 


PAYING  SHARES  TO  MINORS.  407 

estate  of  the  deceased,  as  it  is  in  the  case  of  a  legacy.  A  payment 
to  a  person  not  entitled  to  receive  it,  although  bona  fide,  will  be 
no  protection  against  the  claim  of  the  rightful  party. 

The  general  rule  is.  that  the  distributive  share  of  the  estate  of 
the  deceased  is  not  due  to  the  next  of  kin,  or  widow,  from  the 
executor  or  administrator,  until  one  year  from  the  date  of  the 
letters  testamentary,  or  of  administration,  (2  R.  S.  116,  §  18;) 
and  a  general  account  of  administration  cannot  be  enforced  until 
after  the  expiration  of  eighteen  months  from  the  same  period.  (2 
R.  JS.  92,  §  52  et  seq.) 

But  there  are  cases  where  payment  may  be  decreed  at  an  earlier 
day.  Thus,  by  the  82d  section,  (2  R.  S.  98,)  any  person  entitled 
to  any  legacy  or  distributive  share  of  the  estate  of  the  deceased 
person,  at  any  time  previous  to  the  expiration  of  one  year  from 
the  granting  of  letters  testamentary,  or  of  administration,  is 
authorized  to  apply  to  the  surrogate,  either  in  person  or  by  guar- 
dian, after  giving  reasonable  notice  to  the  executor  or  administra- 
tor, to  be  allowed  to  receive  such  portion  of  such  legacy  or  share 
as  may  be  necessary  for  his  support.  {Seymour  v.  Butler,  3 
Bradf.  193.)  The  83d  section  provides  that  if  it  appears  that 
there  is  at  least  one-third  more  of  assets  in  the  hands  of  such 
executor  or  administrator  than  will  be  sufficient  to  pay  all  debts, 
legacies  and  claims  against  the  estate,  then  known,  he  may  in  his 
discretion  allow  such  portion  of  the  legacy  or  distributive  share  to 
be  advanced  as  may  be  necessary  for  the  support  of  the  person 
entitled  thereto,  upon  satisfactory  bonds  being  executed  for  the 
return  of  such  portion,  with  interest,  whenever  required.  This 
provision,  however,  is  not  applicable  to  the  public  administrator  in 
the  city  of  New  York. 

When  a  distributive  share  is  to  be  paid  to  a  minor,  the  surrogate 
may  direct  the  same  to  be  paid  to  the  general  guardian  of  such 
minor,  and  to  be  applied  to  his  support  and  education,  or  he  may 
direct  the  same  to  be  invested  in  permanent  securities,  as  provided 
in  the  case  of  legacies  to  minors,  with  the  like  authority  to  apply 
the  interest,  and  subject  to  the  same  obligations.  (2  R.  S.  98, 
§80.) 

The  observations  made  in  the  4th  section  of  this  chapter,  on  the 
subject  of  paying  legacies  to  minors,  and  the  practice  there  indi- 


408  PAYING  SHARES  TO  MINORS. 

catecl,  are  applicable  to  this  branch  of  the  subject.  (See  ante, 
page  383  et  seq.) 

The  mode  of  proceeding  under  the  82d  and  83d  sections,  to  ob- 
tain a  portion  of  a  legacy  or  of  a  distributive  share  for  the  support 
of  an  infant,  is  summary.  The  executor  or  administrator,  on  re- 
ceiving notice  of  the  application,  should  prepare  an  account  of  his 
:ulininistration,  as  far  as  he  can  then  ascertain  it,  and  of  the  assets  ; 
which  account  should  be  exhibited  to  the  surrogate,  under  oath,  and 
left  with  him  as  a  part  of  the  papers  in  the  cause.  The  order  for  the 
allowance  or  the  refusal  should  be  entered  in  the  minutes,  but  it  is 
conceived  to  be  the  best  practice  to  transcribe  the  account,  after 
putting  it  in  proper  form,  if  it  was  not  already  so,  in  the  book  for 
keeping  the  accounts  of  executors  and  administrators.  The  ex- 
pense of  the  application  ought  not,  in  general,  to  be  borne  by  the 
fund  belonging  to  the  infant ;  nor  should  the  motion  be  resisted, 
if  it  appears  that  at  least  one  third  more  of  assets  are  in  the  hands 
of  the  executors  or  administrators  than  sufficient  to  pay  all  debts, 
legacies  and  claims  against  the  estate.  In  such  a  case  the  execu- 
tor  or  administrator  should  make  the  advance  to  the  legatee  or 
party  in  distribution,  in  anticipation  of  a  final  settlement.  Indeed, 
in  many  cases,  such  advances  can  be  safely  made,  without  exact- 
ing a  bond  for  refunding.  The  bond  being  for  the  benefit  of  the 
executor  or  administrator,  may  be  dispensed  with  by  him. 

At  any  time  after  one  year  shall  have  elapsed  from  the  date  of 
the  letters  testamentary  or  of  administration,  payment  of  a  distrib- 
utive share  may  be  decreed  by  the  surrogate,  upon  the  application 
of  a  relative  entitled  thereto.  (2  R.  S.  116,  §  18.)  No  bond  is 
required  from  the  next  of  kin  to  the  executor  or  administrator,  to 
refund  in  this  case.  If  the  executor  or  administrator  has  pursued 
the  steps  pointed  out  by  law,  he  will,  after  the  expiration  of  the 
year  from  the  date  of  his  letters,  be  possessed,  in  general,  of  a 
knowledge  of  the  extent  of  the  assets,  and  of  the  claims  against 
the  estate.  If  he  has  failed  to  acquire  such  knowledge,  the  next 
of  kin  ought  not  to  be  prejudiced  or  delayed  by  his  negligence  or 
fraud. 

It  is  the  duty  of  the  executor  or  administrator,  as  soon  after  the 
year  from  the  date  of  his  letters  as  is  practicable,  without  being 
cited  by  the  surrogate  for  that  purpose,  to  pay  over  the  surplus  of 


ENFORCING  PAYMENT  OF  LEGACIES.  409 

the  estate,  after  payment  of  debts  and  charges,  to  the  parties  en- 
titled thereto.  The  statute  contemplates  that  six  months  will  be 
long  enough  for  this  purpose.  Hence,  after  the  lapse  of  eighteen 
months  from  the  date  of  the  letters  testamentary  or  of  administra- 
tion, the  executor  or  administrator,  either  on  the  application  of  a 
person  interested  as  creditor,  legatee  or  next  of  kin,  or  upon  his 
own  application,  may  render  a  final  account  of  his  administration 
to  the  surrogate  by  whom  he  was  appointed.     (2  R.  aS*.  92  et  sea.) 

We  shall  treat  of  the  practice  in  rendering  such  account  in  a 
subsequent  chapter. 

The  practice  formerly  was  for  the  executor  or  administrator  to 
require  a  bond  to  refund  in  all  cases  of  the  payment  of  distribu- 
tive shares.  This  doctrine  was  fully  discussed  by  Chancellor 
Kent,  in  Genet  v.  Talmadge,  (1  John.  Ch.  3,)  and  it  was  to 
obviate  the  inconvenience  and  frequent  injustice  of  that  practice, 
that  the  foregoing  provisions  were  introduced  into  the  revised 
statutes.  {See  Revisers'  Notes.)  An  executor  or  administrator 
who  conducts  his  business  agreeably  to  the  directions  of  the  stat- 
ute, may,  at  the  end  of  eighteen  months  from  his  appointment,  ob- 
tain a  final  settlement  of  his  administration  and  be  discharged  from 
all  future  responsibility. 


CHAPTER  V. 

OF  ENFORCING  THE  PAYMENT  OF  LEGACIES  AND  DISTRIBU- 
TIVE SHARES  IN  SURROGATES'  COURTS,  AND  HEREIN  OF  COM- 
PELLING AND  RENDERING  FINAL  ACCOUNTS. 

"VVe  have  in  a  preceding  chapter  treated  of  the  mode  of  enforc- 
ing the  payment  of  judgments,  by  proceedings  in  surrogates' 
courts,  and  have  discussed,  to  some  extent,  the  subjects  of  legacy 
and  distribution.  We  come  now  to  consider  the  mode  of  enforcing 
the  payment  of  legacies  and  distributive  shares  of  the  estates  of 
deceased  persons.  And  we  shall  close  this  branch  of  our  subject 
by  pointing  out  the  practice  in  rendering  and  settling  the  final 
accounts  of  executors  and  administrators,  in  surrogates'  courts. 
52 


410  ENFORCING  PAYMENT  OF  LEGACIES. 


Section  I. 

Of  the  mode  of  enforcing  the  payment  of  legacies  and  distribu- 
tive shares. 

We  have  shown  in  a  previous  chapter,  that  there  are  two  instances 
where  payment  of  a  legacy  may  be  decreed  within  a  year  from  the 
date  of  the  letters  -testamentary  or  of  administration ;  1.  Where 
the  legacy  is  directed  by  the  will  to  be  sooner  paid,  (2  R.  S.  90, 
§  44,)  and  2.  Where  the  payment  of  the  whole  or  a  part  of  a 
legacy  or  distributive  share  is  necessary  for  the  support  of  the  ap- 
plicant. (2  R.  S.  98,  k  82.)  The  first  embraces  legacies  only  ;  the 
second  comprises  legacies,  or  distributive  shares.  The  authority 
thus  to  anticipate  the  time  of  payment  is  not  exclusively  to  be  ex- 
ercised in  favor  of  infants,  but  applies  to  adults  also.  {Seymour 
v.  Butler,  3  Bradf  193.) 

The  mode  of  proceeding  is  as  follows  :  1.  In  case  the  will 
directs  a  legacy  to  be  paid  within  a  year,  the  executor  or  admin- 
istrator is  authorized  to  require  a  bond  with  two  sufficient  sureties, 
conditioned,  that  if  any  debts  against  the  deceased  shall  duly  ap- 
pear, and  which  there  shall  be  no  other  assets  to^  pay,  and 
there  shall  be  no  other  assets  to  pay  other  legacies,  or  not 
sufficient,  that  then  the  legatee  shall  refund  the  legacy  so  paid, 
or  such  ratable  proportion  thereof  with  the  other  legatees,  as 
may  be  necessary  for  the  payment  of  the  said  debts,  and  the 
proportional  parts  of  such  other  legacies,  if  there  be  any,  and  the 
costs  and  charges  incurred  by  reason  of  the  payment  to  such  lega- 
tee; and  that  if  the  probate  of  the  will  under  which  such  legacy  is 
paid,  shall  be  revoked  or  the  will  declared  void,  then  that  such 
legatee  shall  refund  the  whole  of  such  legacy,  with  interest,  to  the 
executor  or  administrator  entitled  thereto.     (2  R.  S.  90,  §  44.) 

An  executor  or  administrator  cannot  be  deemed  to  be  in  default 
for  not  paying  a  legacy  within  the  year,  unless  the  bond  above 
prescribed  is  tendered  to  him  duly  executed  and  acknowledged. 
He  may,  indeed,  on  receiving  such  bond  voluntarily  make  the  pay- 
ment ;  but  if  he  declines  to  do  so,  the  legatee,  in  order  to  obtain  a 
decree  in  his  favor  for  the  legacy,  should  present  a  petition  to  the 


ENFORCING  PAYMENT  OF  LEGACIES.  411 

court,  briefly  stating  the  facts  entitling  him  to  payment,  and  pray- 
ing for  an  order  for  that  purpose.  It  should  be  duly  verified,  and 
on  filing  it,  an  order  should  be  entered  in  the  minutes,  that  a  sum- 
mons issue  to  the  executor  or  administrator,  as  in  the  case  of  pro- 
ceedings to  compel  the  return  of  an  inventory. 

The  executor  or  administrator  may  answer  the  petition,  either 
by  the  denial  of  the  facts  set  forth  in  it,  or  by  setting  up  other 
facts  in  avoidance.  It  is  presumed  that  a  deficiency  of  assets  to 
pay  debts,  if  discovered  before  the  application,  would  be  a  good  bar 
to  a  decree  for  the  legacy  notwithstanding  the  bond.  Debts,  it  has 
already  been  shown,  claim  a  priority  over  legacies.  The  bond  is 
required  in  the  case  under  consideration,  because  payment  of  the 
legacy  may  be  exacted  before  the  condition  of  the  assets  is  known. 
It  is  not  only  for  the  indemnity  of  the  executor  or  administrator, 
but  for  the  security  of  the  legatees  and  parties  in  distribution. 

If  the  surrogate  makes  a  decree,  it  may  be  enforced  in  the  man- 
ner above  suggested,  or  by  a  suit  on  the  bond  of  the  executor  or 
administrator  whenever  directed  by  the  surrogate.  (2  it.  &  91, 
§45.) 

2.  Where  the  whole  or  a  part  of  a  legacy  or  a  distributive 
share  is  wanted  before  the  expiration  of  the  year  from  the  date  of 
the  letters  testamentary  or  of  administration,  for  the  support  of  the 
party  entitled  to  such  legacy,  or  share,  although  the  time  of  payment 
of  the  legacy  has  not  arrived  by  the  terms  of  the  will,  such  party  may, 
either  in  person,  or  if  a  minor,  by  his  guardian,  apply  to  the  surro- 
gate of  the  proper  county,  to  be  allowed  to  receive  such  portion  of  such 
legacy  or  share  as  may  be  necessary  for  his  support.  A  reason- 
able notice  of  the  application  must  be  given  to  the  executors  or 
administrators.  As  the  statute  is  silent  as  to  the  time  of  notice, 
the  surrogate  must  determine  what  is  a  reasonable  notice,  from  a 
view  of  the  whole  case.  On  the  appearance  of  the  parties,  the 
surrogate  should  examine  into  the  condition  of  the  estate,  in  a 
summary  way,  and  if  there  is  at  least  one  third  more  of  assets  in 
the  hands  of  the  executor  or  administrator  than  will  be  sufficient 
to  pay  all  debts,  legacies  and  claims  against  the  estate  then  known, 
he  may  in  his  discretion  allow  such  portion  of  the  legacy  or  dis- 
tributive share  to  be  advanced  as  may  be  necessary  for  the  support 
of  the  person  entitled  thereto,  upon  satisfactory  bonds  befng  ex- 


412  ENFORCING  PAYMENT  OF  LEGACIES. 

ccutod  for  the  return  of  such  portion,  with  interest,  whenever  re- 
quired.    (2  R.  S.  98,  §§  82,  83.) 

From  what  has  been  said  it  would  seem  that  the  surrogate 
must  act  upon  the  account  rendered  by  the  executor  or  adminis- 
trator under  oath,  unless  the  petitioner  is  able  to  impeach  it. 
The  surrogate  has  a  reasonable  discretion  to  exercise  on  this  ap- 
plication. 

In  the  foregoing  cases  the  application  may  be  made  at  any  time 
after  the  date  of  the  letters  testamentary  or  of  administration. 
There  is  still  another  class  of  cases  where  the  application  cannot  be 
made  until  after  one  year  from  the  date  of  the  letters,  and  yet  may 
be  made  before  the  eighteen  months  from  that  time.  This  is  pro- 
vided for  by  the  18th  section,  (2  R.  S.  116,)  which  gives  the  sur- 
rogate of  the  proper  county  jurisdiction  to  decree  the  payment  of 
debts,  legacies,  and  distributive  shares,  or  the  just  proportional 
part,  at  any  time  after  one  year  shall  have  elapsed,  from  the  grant- 
ing of  such  letters,  upon  the  application  of  a  creditor,  legatee  or 
party  entitled  to  such  distributive  share.  In  this  stage  of  the  ad- 
ministration of  the  estate  no  bail  is  required  of  the  creditor,  lega- 
tee or  distributee  to  refund.  The  decree  of  the  surrogate  will  be 
a  complete  protection  to  the  executor  or  administrator  to  make  the 
payment  directed. 

The  mode  of  the  application  is  by  petition,  as  in  the  former  cases. 
The  proceeding  cannot  be  the  basis  of  a  final  account.  As  no  parties 
are  brought  before  the  court  but  the  executors  or  administrators, 
the  surrogate  should  be  cautious,  and  not  decree  in  favor  of  the 
applicant  more  than  will  be,  on  a  final  settlement  of  the  estate,  the 
just  share  of  the  petitioner.  Where  the  solvency  of  the  estate  is 
doubtful,  or  from  its  complicated  nature  it  cannot  be  brought  to  a 
close  in  one  year,  it  would  seem  the  surrogate  has  a  discretion 
whether  to  decree  payment  or  not.  [Flagg  v.  Ruden,  1  Braclf. 
193.) 

The  foregoing  cases  are  not  of  frequent  occui-rence.  It  is  not 
until  the  eighteen  months  have  elapsed  from  the  date  of  the  letters 
testamentary  or  of  administration  that  an  executor  or  administra- 
tor can  be  required  to  render  an  account  of  his  proceedings  by 
an  order  of  the  surrogate.  This  order  can  be  granted  upon  ap- 
plication from  some  person  having  a  demand  against  the  personal 


ENFORCING  PAYMENT  OF  LEGACIES.  413 

estate  of  the  deceased,  either  as  creditor,  legatee  or  next  of  kin  ; 
or  of  some  person  in  behalf  of  any  minor  having  such  claim ;  or 
without  such  application.  (2  R.  S.  92,  §  52.)  And  by  the  sec- 
tion as  amended  in  1859,  in  the  case  of  an  administrator,  the  ac- 
count can  be  required  upon  the  application  of  any  person  who  is  or 
has  been  his  bail,  or  of  the  legal  representatives  of  such  person. 
{Law  o/1859,  page  569,  ch.  261,  §  1.) 

It  is  said  by  the  chancellor  that  before  the  revolution  surrogates 
had  no  jurisdiction  to  compel  executors  to  render  an  account  of 
their  administration,  but  that  they  were  confined  to  administra- 
tors. (Foster  v.  Wilbur,  1  Paige,  540.)  The  power  was  extend- 
ed to  executors  in  1787.  and  at  the  present  time  the  jurisdiction 
over  both  is  firmly  established.  It  is  well  settled  also  that  the 
surrogate  can,  of  his  own  motion,  compel  executors  and  adminis- 
trators, after  the  expiration  of  eighteen  months  from  their  appoint- 
ment, to  render  an  account  of  their  administration.  ( Thompson 
v.  Thompson,  1  Bradf.  24.  Westervelt  v.  Gregg,  1  Barb, 
Ch.  R.  469.)  In  such  a  case,  after  examining  the  executor  or  ad- 
ministrator upon  oath  touching  the  account,  and  filing  the  account 
and  vouchers,  the  proceeding  is  thereupon  terminated,  and  the  sur- 
rogate cannot  proceed  to  settle  the  account.     {Id.) 

It  is  only  where  a  party  having  some  interest  in  the  estate  as 
creditor,  legatee  or  next  of  kin  invokes  the  aid  of  the  court,  that  a 
decree  can  be  made  for  the  payment  of  a  debt,  a  legacy  or  dis- 
tributive share.  The  surrogate  cannot,  on  his  own  motion,  direct 
such  payment.  It  is  on  the  motion  of  the  claimant  alone,  that  a 
decree  can  be  made  in  his  favor  ;  and  it  is  on  the  motion  of  the 
executor  or  administrator  alone,  that  the  accounts  of  the  estate 
can  be  finally  settled.  (2  R.  S.  93,  §  60.  Stone  v.  Morgan, 
10  Paige,  615.  Bronson  v.  Ward,  3  id.  189.  Westervelt  v. 
Gregg,  1  Barb.  Ch.  R.  478.     Gratacap  v.  Phyfe,  Id.  485.) 

It  was  remarked  by  Sir  John  Nicholl,  in  Grignion  v.  Grignion, 
(1  Hagg.  535,  3  E.  E.  R.  239,)  that  the  original  jurisdiction  in  cases 
of  legacy,  to  enforce  payment  and  to  compel  executors  to  perform 
their  duty,  was  in  the  ecclesiastical  courts.  Temporal  courts,  how- 
ever, interfered  by  injunction  or  prohibition  where  those  courts  were 
already  in  possession  of  the  cause,  or  where  the  powers  of  the 
ecclesiastical  judges  were  defective  or  insufficient,  but  not  where 


414  ENFORCING  PAYMENT  OF  LEGACIES. 

no  trust  was  existing,  beyond  the  mere  trust  of  executorship,  which 
remained  to  be  executed.     Indeed,  the  jurisdiction  of  the  ecclesiasti- 
cal courts,  in  compelling  payment  of  personal  legacies,  is  older  than 
that  of  the  court  of  chancery  ;  and  it  was  only  upon  the  notion  of  a 
trust  that  equity  originally  assumed  jurisdiction  in  these  matters. 
The  course  of  proceeding  in  the  Arches  court  is  said  to  have 
been  as  follows  :  The  executor  being  cited  to  answer  the  legatee  in 
a  suit  of  substraction  of  legacy,  a  short  libel  is  brought  in,  plead- 
ing that  the  testator  made  his  will ;  that  he  appointed  C.  D.  exec- 
utor thereof;  that  he  is  since  dead  without  revoking  his  will ;  that 
since  his  death  the  executor  has  proved  the  will  in  the  proper 
court ;  that  by  his  will  the  testator  left  a  legacy  to  E.  F.,  in  the  fol- 
lowing terms,  (setting  it  forth  ;)  that  the  legacy  remains  unsatisfied; 
that  the  executor  is  possessed  of  and  has   admitted  assets ;  has 
been  applied  to  and  refused  payment ;  that  the  promoter  is  the 
identical  legatee  and  is  of  full  age  ;  and  concludes  with  a  prayer 
that  the  executor  may  be  compelled  to  pay  the  legacy  and  be  con- 
demned in  costs.     {Butler  v.  Robson,  3  Phill  412.    2  Wms.  Ex'rs^ 
1780.)     In  Foster  v.  Wilbur,  1  Paige,  540,  the  executors  were 
cited  to  render  an  account  before  the  surrogate,  and  on  the  return 
of  the  citation,  they  called  upon  the  promoters  to  state  the  grounds 
of  their  claim  against  the  executors ;  but  it  was  not  done.     On 
this   branch  of  the  case,  the  chancellor  said  "  it  was  their  duty, 
when  called  on  for  that  purpose,  to  file  a  written  allegation  or  libel, 
propounding  or  stating  the  substance  of  their  claim  against  the 
defendants  respectively,  and  the  nature  and  grounds  thereof.     If 
this  allegation  was  insufficient,  and  showed  no  grounds  for  pro- 
ceeding against  the  executors,  the  court  might  be  called  upon  to 
reject  it ;  or  they  might  take  issue  on  the  facts  propounded ;  or 
put  in  a  counter  allegation  in  the  nature  of  a  plea  in  bar.     Until 
some  issue  was  joined  in  the  cause,  neither  party  could  be  prepared 
to  20  into  the  examination  of  testimony." 

The  course  suggested  by  the  chancellor  may  be  a  proper  one  in  a 
case  like  the  one  before  him,  where  the  citation  had  been  issued 
on  a  verbal  application,  ore  tenus.  It  is  not,  however,  the  usual 
practice  in  surrogates'  courts  at  this  day. 

The  mode  of  procedure  generally  adopted  is  for  the  claimant  to 
present  a  petition,  in  writing,  to  the  surrogate,  setting  forth  the 


ENFORCING  PAYMENT  OF  LEGACIES.  415 

rights  of  the  petitioner  as  creditor,  legatee  or  distributee,  and  the 
circumstances  which  create  the  liability  of  the  executor  or  admin- 
istrator, and  praying  for  the  appropriate  relief  against  the  execu- 
tor or  administrators.     It  should  be  verified  by  affidavit. 

The  order  granted  on  the  filing  of  the  petition,  will  be  an  alter- 
native order,  according  to  the  prayer  of  the  petition,  requiring  the 
executors  or  administrators  to  account  and  satisfy  the  claim,  or 
show  cause,  on  a  day  to  be  appointed,  to  the  contrary.  The  order 
must  be  served  on  the  executor  or  administrator  by  showing  the 
original,  and  at  the  same  time  delivering  a  copy,  or  in  case  of  his 
absence  from  home,  by  leaving  a  copy  thereof  with  his  wife,  or 
some  suitable  person,  at  the  place  of  his  residence,  thirty  days  at 
least  before  the  time  of  hearing. 

If  the  executor  or  administrator  does  not  reside  within  this 
state,  the  order  must  be  served  by  publishing  it  once  in  each  week 
for  three  months  before  the  return  day  thereof,  in  the  state  paper, 
and  also  in  the  county  paper  where  the  surrogate  resides  who 
issued  the  order,  if  any  such  paper  is  then  published  in  said  county, 
and  if  not,  in  the  county  paper  of  some  adjoining  county,  unless 
the  order  be  personally  served  on  such  executor  or  administrator, 
and  if  it  shall  be  so  personally  served  on  any  such  executor  or  admin- 
istrator residing  out  of  the  state,  at  the  time  of  service,  such  service 
shall  be  made  at  least  sixty  days  before  the  return  thereof.  (L.  of 
1837,  ch.  460,  §  76.     3  R.  IS.  178,  5th  ed.) 

By  the  53d  section  (2  R.  &  92,)  it  is  enacted  that  obedience  to 
this  order  may  be  enforced  in  the  manner  before  directed,  to  com- 
pel the  return  of  an  inventory ;  and  in  case  of  disobedience,  the 
same  proceedings  may  be  had  to  attach  the  party  so  disobeying, 
and  to  discharge  him.  And  the  like  revocation  of  the  letters 
granted  to  him  may  be  made  in  case  of  the  party's  absconding  or 
concealing  himself,  so  that  the  order  cannot  be  personally  served, 
or  of  his  neglecting  to  render  an  account  within  thirty  days  after 
being  committed ;  and  new  letters  shall  be  granted  with  the  like 
effect  as  in  those  cases.     (For  these  proceedings  see  ante,  p.  363.) 

On  the  return  day  of  the  order,  if  the  claimant  fails  to  appear, 
the  petition  will  be  dismissed,  unless  cause  be  shown  to  the  con- 
trary. If  the  claimant  appears  and  the  executor  or  administrator, 
having  been  duly  notified,  either  by  a  personal  service  or  by  pub- 


416  ENFORCING  PAYMENT  OF  LEGACIES. 

lication,  as  the  case  may  be,  he  may  proceed  ex  parte  to  establish 
liis  right  to  the  relief  sought. 

If  the  claimant  has  asked  for  no  other  relief  but  an  account,  the 
executors  or  administrators  will  be  entitled  to  be  dismissed,  on 
complying  with  the  order,  and  rendering  the  account.  {Campbell 
v.  Bruen,  1  Bradf.  224.  Westervelt  v.  Gregg,  supra.  Smith 
v.  Van  Keuren.  2  Barb.  Ch.  473.) 

But  the  petition  usually  prays  for  the  payment  of  a  debt,  a  legacy 
or  distributive  share,  and  the  calling  for  an  account  is  only  sub- 
sidiary to  that  relief.  The  parties  on  both  sides  generally  appear 
on  the  return  of  the  order. 

In  case  both  parties  appear,  and  the  claim  is  not  disputed  by 
the  executors  or  administrators,  nor  a  deficiency  of  assets  pre- 
tended, an  order  will  be  made  by  the  surrogate  directing  the  pay- 
ment of  the  sum  allowed  by  the  surrogate.  The  payment  of  that 
amount  will  terminate  that  proceeding.     {Id.) 

But  various  questions  may  arise  before  the  surrogate,  on  the 
appearance  of  the  parties  on  the  return  of  the  order. 

1.  If  the  claimant  has  omitted  to  state  the  facts  necessary  to 
entitle  him  to  relief,  in  his  petition,  he  may,  in  this  stage  of  the 
cause,  be  required  by  the  executors  or  administrators  to  set  forth 
in  the  form  of  an  allegation  or  libel,  as  was  suggested  by  the  chan- 
cellor in  Foster  v.  Wilbur,  supra,  a  full  statement  of  the  facts 
which  constitute  his  claim  and  his  right  to  relief;  and  on  his  failing 
to  do  so,  the  petition  may  be  dismissed.  But  if  the  petition  has 
been  properly  drawn  and  contains  all  the  averments  necessary  to 
give  the  court  jurisdiction  and  entitle  the  claimant  to  the  relief 
prayed  for,  it  is  believed  that  no  further  pleading  on  his  part  is 
necessary. 

The  claim  may  be  resisted  on  the  part  of  the  executors  or 
administrators,  by  controverting  any  of  the  material  averments  of 
the  petition.  It  may  be  shown  that  the  claimant  has  no  interest 
in  the  estate,  as  legatee  or  next  of  kin ;  that  the  debt  which  he 
sets  up  has  been  barred  by  the  statute  of  limitations,  or  is  barred 
by  a  release  or  otherwise.  ( Gratacap  v.  Phyfe,  1  Barb.  Ch.  R. 
486.)  He  may  also  show  that  the  debt  has  been  disputed  by  the 
executors  or  administrators,  and  not  referred  as  allowed  by  the 
act,  or  prosecuted  to  judgment.     It  is  not  believed  that  a  creditor 


RESISTING  CLAIMS  AGAINST  THE  ESTATE.  417 

at  large,  whose  pretended  debt  is  not  assented  to  by  the  executors 
or  administrators,  but  on  the  contrary  contested  by  them,  can 
institute  an  action  before  the  surrogate  to  recover  it  in  this  way. 
(Dissosway  v.  The  Bank  of  Washington,  24  Barb.  60.  Chan- 
des  v.  Nor t hup,  Id.  129.  Francisco  v.  Filch,  25  id.  130.  Wilcox 
v.  Smith,  26  id.  316.)  The  cases  of  Campbell  v.  Brum,  1  Bradf. 
225,  and  Babcock  v.  Lillis,  4  id.  218,  are  not  in  conflict  with  this 
position.  If  a  demand  against  the 'deceased  be  presented  to  the 
executors  or  administrators,  with  the  vouchers  thereof,  and  be 
assented  to  by  them,  whether  it  was  a  mere  equitable  claim,  or  an 
unliquidated  demand  before  such  presentation,  it  can  no  doubt  be 
allowed  by  the  surrogate,  and  ordered  to  be  paid.  If  it  be  not 
assented  to,  but  on  the  contrary  contested,  the  claimant  must  have 
it  liquidated  by  a  judgment  in  a  court  of  law,  either  on  a  trial  or 
by  a  reference,  before  he  can  rightfully  invoke  the  aid  of  the  sur- 
rogate in  the  premises. 

On  the  same  principle  the  claim  for  a  distributive  share  may  be 
resisted  on  the  ground  that  the  applicant  is  not  one  of  the  next  of 
kin  within  the  meaning  of  the  statute  of  distributions  ;  or  that  he 
has  received  his  share  by  way  of  advancement ;  or  if  the  claim  be  for 
a  legacy,  that  there  are  no  assets  applicable  to  the  payment  of  it, 
or  that  it  was  satisfied  by  the  testator  in  his  lifetime ;  or  if  it  be 
a  specific  legacy,  that  it  has  been  adeemed  by  the  destruction  of 
its  subject  in  the  lifetime  of  the  testator.  So,  also,  the  question  as 
to  whether  there  has  been  a  donatio  mortis  causa  sometimes 
arises  on  taking  an  account.  A  donatio  mortis  causa  partakes  of 
the  nature  of  a  legacy  and  of  a  gift  inter  vivos.  The  gift  must  be 
with  a  view  to  the  testator's  death ;  it  must  be  conditioned  to  take 
effect  on  the  death  of  the  donor  by  his  existing  disorder ;  and  it 
must  be  accompanied  by  an  actual  delivery  of  the  subject  of  the 
donation.  [Craig  v.  Craig,  3  Barb.  Ch.  R.  76.  Harris  v.  Clark, 
3  Comst.  93.      Willards  Eq.  Juris.,  553  et  seq.) 

2.  It  follows,  from  what  has  been  said,  that  the  executors  or 
administrators  may,  in  answer  to  the  claim,  show  either  that  no 
assets  of  the  deceased  ever  came  to  their  hands  or  under  their  con- 
trol, or  that  they  have  fully  administered  them. 

It  is  said  that,  in  England,  courts  of  equity  exercise  a  concurrent 
jurisdiction  with  the  spiritual  court  in  these  matters ;  but  where 
53 


418  KESISTING  CLAIMS  AGAINST  THE  ESTATE. 

the  case  is  such  that  the  ecclesiastical  court  cannot  do  complete 
justice  in  the  cause,  chancery  has  not  only  a  concurrent,  hut  ex- 
clusive jurisdiction.  Thus,  where  the  husband  sues  in  the  spiritual 
court  for  a  legacy  bequeathed  to  the  wife,  the  court  of  chancery 
will  grant  an  injunction  to  stay  the  proceedings,  since  the  ecclesi- 
astical judge  has  no  authority  to  compel  a  settlement.  So  in 
cases  of  legacies  to  infants,  equity  will  interfere  in  their  behalf 
to  protect  their  interests  and  to  give  proper  directions  for  securing 
and  improving  the  fund  for  their  benefit,  which  cannot  be  effec- 
tually done  in  the  ecclesiastical  court.  (2  Wms.  Ex.  1781.  2 
Hop.  on  Legacies,  694,  3<Z  ed.) 

But  these  reasons  for  ousting  the  surrogate's  court  of  jurisdic- 
tion do  not  now  exist  in  this  state,  whatever  may  have  been  the 
case  before  the  revised  statutes  of  1830.  It  is  believed  that  the 
surrogate  has  power  to  protect  the  rights  of  the  wife  when  the 
husband  sues  for  a  legacy  bequeathed  to  her,  and  can  equally 
with  the  court  of  chancery  guard  the  rights  of  infants.  (2  R.  S. 
91,  §§  42  to  51.  McLoskey  v.  Reid,  4  Bradf.  334.)  The  acts 
of  1848  and  1849,  to  protect  the  property  of  married  women, 
which  have  been  already  referred  to  elsewhere,  sufficiently  guard 
all  bequests  to  the  wife  at  the  present  day  from  being  seized  and 
appropriated  by  the  husband  or  his  creditors,  without  her  consent. 

The  surrogate  has  in  these  matters,  in  many  respects,  a  more 
ample  jurisdiction  than  is  possessed  by  the  English  ecclesiastical 
courts.  In  matters  of  account,  it  has  been  treated  by  the  chancel- 
lor as  concurrent  with  that  of  courts  of  equity.  The  pendency  of  a 
suit  in  chancery,  therefore,  by  one  creditor  for  an  account,  if  the 
suit  has  not  proceeded  to  a  decree,  is  no  bar  to  a  proceeding  insti- 
tuted before  the  surrogate  by  another  creditor  for  an  account.  But 
if  the  same  creditor,  who  has  filed  a  bill  in  chancery  against  an 
executor  or  administrator  for  an  account,  afterwards  cites  him  to 
an  account  before  the  surrogate,  the  pendency  of  the  suit  in 
chancery  may  be  set  up  before  the  surrogate,  in  the  nature  of  a 
plea  in  abatement,  and  will  constitute  a  valid  objection  to  the  pro- 
ceedings there.     (Rogers  v.  King,  8  Paige,  210.) 

In  the  case  of  proceedings  in  courts  of  concurrent  jurisdiction, 
there  will  be  a  point  in  which  one  or  the  other  will  obtain  the  ex- 
clusive control.     Hence,  after  a  decree  for  an  account  has  been 


DECREEING  PAYMENT  OF  DEBTS.  419 

made  in  a  chancery  suit  for  the  benefit  of  all  persons  interested  in 
the  estate  of  the  deceased,  such  decree  will  deprive  every  such 
person  of  the  right  to  proceed  before  the  surrogate  for  an  account ; 
and  upon  a  proper  application,  the  court  of  chancery,  after  such 
decree,  will  grant  an  injunction  as  a  matter  of  course,  to  stay  all 
proceedings  for  an  account  before  the  surrogate,  and  to  compel 
them  to  come  in  -and  establish  their  claims  under  the  decree. 
(Rogers  v.  King,  supra.)  The  same  jurisdiction  formerly  pos- 
sessed by  the  chancellor  is  now  enjoyed  by  the  supreme  court. 

But  this  right  of  the  court  which  has  first  acquired  jurisdiction 
of  the  cause  to  restrain  proceedings  in  another  court  of  concurrent 
jurisdiction,  is  not  reciprocal ;  nor  is  it  necessary  that  it  should 
be  so.  The  surrogate  cannot  prohibit  proceedings  by  executors  or 
administrators  in  the  supreme  court.  (In  the  matter  of  Parker, 
1  Barb.  Ch.  R.  154.)  The  latter  court  will,  it  is  to  be  presumed, 
on  a  proper  application,  grant  the  requisite  relief. 

There  is  another  respect  in  which  the  jurisdiction  of  the  surro- 
gate vastly  transcends  that  of  the  English  ecclesiastical  courts. 
The  spiritual  jurisdiction,  as  is  stated  by  an  eminent  English 
writer,  (2  Wms.  ExWs,  1783,)  extends  to  legacies  of  personal  prop- 
erty only ;  therefore,  if  lands  be  devised  to  be  sold  for  the  pay- 
ment of  legacies,  or  if  the  legacies  in  any  way  arise  out  of  the 
freehold,  they  can  be  sued  for  only  in  a  court  of  equity.  (Barker 
v.  May,  9  Barn.  $•  Cres.  489.) 

With  us,  however,  the  surrogate  has  jurisdiction  to  decree  the 
payment  of  debts  and  legacies,  where  by  any  last  will  proved  in 
his  office  a  sale  of  real  estate  shall  be  ordered  to  be  made  either 
for  the  payment  of  debts  or  legacies.  (2  R.  S.  109,  §  57.)  The 
statute  in  this  respect  gives  him  the  same  power  over  the  fund 
arising  from  such  sale,  both  to  decree  an  account  and  to  enforce  pay- 
ment and  distribution,  as  if  it  had  been  the  personal  property  of  the 
deceased.  (Id.)  Upon  the  doctrine  of  equitable  conversion,  the  whole 
estate,  under  such  a  will,  is  to  be  considered  as  personal  estate, 
from  the  death  of  the  testator,  so  that  the  rents  and  profits  of  the 
real  estate  received  by  the  executor,  and  the  proceeds  of  a  salo 
thereof  made  by  him,  become  legal  assets  in  his  hands,  for  which 
he  is  bound  to  account  as  personal  estate.  (Stagg  v.  Jackson, 
1  Comst.  200,   off.  &  C\  2  Barb.  Ch.   R.  80.      BLuodgood  v. 


420  EQUITABLE  CONVERSION— CHARGE. 

Bruen,  2  Bradf.  8.  Id.  107.  Clark  v.  Clark,  8  Paige,  153.) 
The  same  rule  applies  where  a  sale  of  real  estate  is  made  in  pur- 
suance of  an  authority  given  by  any  will,  as  where  it  is  ordered 
to  be  sold.  (Laws  of  1837,  ch.  460,  §  75.  3  R.  S.  198,  5th  ed.) 
A  sale  in  either  case  works  out  an  equitable  conversion  of  the  real 
into  personal  estate,  and  subjects  it  to  the  jurisdiction  of  the  sur- 
rogate's court.  In  such  a  case,  where  the  will  directs  real  and 
personal  property  to  be  sold  by  the  executors,  and  makes  but  one 
fund  of  both  the  real  and  personal  property  of  the  testator,  for  the 
purposes  of  the  will,  neither  the  executors  or  the  estate  should 
be  subjected  to  the  expense  of  taking  two  accounts  of  the  same 
fund,  or  of  different  parts  thereof:  one  before  the  surrogate  and 
the  other  in  a  court  of  equity.  The  statute  is  broad  enough  to 
give  the  surrogate  jurisdiction  over  both.  (Stagg  v.  Jackson, 
supra.) 

But  whether,  where  the  estate  has  not  been  devised  to  the  exec- 
utors in  trust  to  sell,  or  where  they  have  not  been  expressly  or- 
dered to  sell ;  or  where  authority  has  not  been,  in  terms,  given  to 
them  to  sell  and  dispose  of  it,  the  executors  can,  in  the  surrogate's 
court,  enforce  a  mere  charge  of  debts  or  legacies  upon  the  testa- 
tor's real  estate,  by  a  sale  thereof,  has  not  yet  been  decided.  It 
would  seem  that  he  cannot.  He  is  expressly  prohibited  from 
ordering  the  sale  of  real  estate  to  satisfy  judgments,  mortgages  or 
other  charges  upon  the  real  estate  of  the  deceased  ;  and  every  sale 
ordered  by  him  is  required  to  be  made  subject  to  all  charges  by 
judgment,  mortgage  or  otherwise,  upon  the  lands  so  sold,  exist- 
m&  at  the  time  of  the  death  of  the  testator  or  intestate.  (2  R.  8. 
102,  §  14.  Id.  105,  §  32.)  Such  a  charge  could  only  be  enforced 
by  bill  in  equity  before  the  revised  statutes,  and  it  is  believed 
that  the  law  is  unaltered  in  this  respect  at  this  day.  (Pelletreaic 
v.  Rathbone,  18  John.  R.  428.  Lockwood  v.  Stockholm,  11 
Paige,  87.) 

There  are  doubtless  other  cases  where  the  remedy  of  creditors, 
legatees  and  distributees  can  be  better  asserted  in  a  court  of  equity, 
than  in  the  surrogate's  court ;  and  this  is  the  case,  too,  in  many 
instances  where  the  jurisdiction  is  concurrent.  But  the  consider- 
ation of  this  class  of  cases  does  not  belong  to  this  treatise. 

The  surrogate's  court  has  no  power  to  compel  the  execution  of 


FINAL  ACCOUNT.  421 

trusts ;  and  therefore,  where  a  legacy  is  given  to  trustees,  or  a 
trust  is  created  other  than  what  arises  from  the  office  of  ex- 
ecutor, the  remedy  can  only  be  enforced  in  a  court  of  equity.  But 
if  the  trust  has  been  executed,  and  the  executor  merely  withholds 
the  legacy,  the  surrogate,  it  seems,  has  jurisdiction.  By  a  recent 
statute,  testamentary  trustees  may,  at  their  option,  render  their 
accounts  before  the  surrogate ;  but  this  belongs  to  the  subject  of 
the  next  section.  (2  R.  S.  94,  §  QQ,  as  amended  by  the  Laws  of 
1850,  ch.  272.     Grignion  v.  Grignion,  1  Hagg.  535.) 

A  suit  instituted  by  a  creditor,  legatee  or  next  of  kin,  after  the 
expiration  of  eighteen  months  from  the  date  of  the  letters  testa- 
mentary or  of  administration,  may,  at  the  election  of  the  executor 
or  administrator,  be  the  basis  of  a  final  settlement  of  his  adminis- 
tration. (2  R.  S.  93,  §  60.)  If  he  suffers  it  to  proceed  against 
him  to  a  final  decree,  without  bringing  before  the  court  the  parties 
in  interest,  he  is  left  exposed  to  be  again  proceeded  against  by 
the  other  persons  interested  in  the  estate.  {Bronson  v.  Ward, 
3  Paige,  189.  Stone  v.  Morgan,  10  id.  615.  Campbell  v. 
Bruen,  1  Bradf.  224.  Westervelt  v.  Gregg,  1  Barb.  Ch.  R. 
469.)  The  decision  is  not  conclusive  on  such  as  are  absent  and 
have  not  been  cited.  An  executor  or  administrator  when  he  is 
required  by  the  surrogate  to  render  an  account,  if  he  desires  to 
have  the  same  finally  settled,  in  the  surrogate's  court,  must  apply 
to  the  surrogate  for  a  citation,  requiring  the  creditors  and  next  of 
kin  of  the  deceased,  and  the  legatees,  if  there  be  any,  to  appear 
before  him,  on  some  day  therein  to  be  specified,  and  to  attend  the 
settlement  of  such  account.     (2  R.  8.  93,  §  60.     Toller,  494.) 

The  proceedings  and  practice  on  such  an  application  will  be 
treated  of  in  the  next  section.  We  shall  also  postpone  to  the 
next  section  the  principles  on  which  the  accounts  of  executors  and 
administrators  arc  to  be  stated  and  settled. 


422  GENERAL  ACCOUNT. 


Section  II. 

Of  the  parties  necessary  to  a  general  account,  the  mode  of 
.  serving  jirocess,  and  herein  of  the  appointing  guardians  ad 
litem  for  minors,  and  notice  to  creditors  to  exhibit  claims. 

The  executor  or  administrator,  being  required  by  the  order  of 
the  surrogate  to  render  an  account,  as  was  mentioned  in  the  pre- 
ceding section,  and  being  desirous  of  having  the  account  finally 
settled,  may,  on  his  part,  apply  to  the  surrogate  before  whom  he 
is  summoned  to  account  for  a  citation  requiring  the  creditors  and 
next  of  kin  of  the  deceased,  and  the  legatees,  if  there  be  any,  to 
appear  before  him  on  some  day  therein  to  be  specified,  and  to  at- 
tend the  settlement  of  such  account.  (2  R.  S.  93,  §  60.)  By 
applying  for  such  citation,  he  admits  the  right  of  the  creditor, 
legatee,  or  next  of  kin  to  call  him  to  account.  (Kellett  v.  Rath- 
bun,  4  Paige,  102.)  If  the  party  on  whose  application  the  sum- 
mons was  issued  against  the  executor  or  administrator  to  account, 
has  no  valid  claim  against  the  estate,  either  by  reason  of  pay- 
ment or  otherwise,  the  latter  should,  if  he  desires  to  resist  the 
application,  put  in  an  allegation  of  the  fact  before  the  surrogate, 
on  the  return  of  the  summons.  To  this  the  actor  may  plead,  and 
if  it  is  decided  in  favor  of  the  executor  or  administrator,  it  will  bar 
the  party  on  whose  application  the  summons  was  issued,  from 
calling  the  executor  or  administrator  to  account.  {Kellett  v.  Rath- 
bun,  supra.)  Enough  was  said  on  this  branch  of  the  subject  in 
the  foregoing  section. 

If,  however,  the  decision  is  against  the  executor  or  administra- 
tor, an  order  should  be  entered  by  the  surrogate  in  the  minutes, 
requiring  the  executor  or  administrator  to  account.  This  order, 
it  must  be  remembered,  is  different  from  the  final  decree  pro- 
nounced on  the  account  rendered.  It  is  itself  the  subject  of  ap- 
peal, and  until  reversed  is  conclusive  against  the  executor  or  ad- 
ministrator, that  he  has  not  fully  accounted,  and  that  the  party 
who  applied  for  the  process  has  some  claim  against  the  estate. 
{Kellett  v.  Raihbnn,  supra.)  If  the  executor  or  administrator 
has  aliculy  settled  with  all   persons  interested  in  the  estate,  he 


GENERAL  ACCOUNT.  493 

should  resist  the  order  compelling  liiin  to  account,  by  some  of  the 
ways  suggested  in  the  last  section,  or  otherwise.  But  if  he  is 
satisfied  that  the  complainant  has  some  claim  against  the  estate, 
and  is  desirous  of  bringing  the  suit  to  a  close,  and  to  have  the 
estate  finally  settled  before  the  surrogate,  he  should  present  a 
petition  to  the  surrogate,  after  being  required  to  account,  setting 
forth,  as  the  case  may  be,  the  date  of  his  appointment  as  executor 
or  administrator ;  the  death  of  the  testator  or  intestate  ;  the  names 
of  the  legatees,  if  any  :  the  names  of  the  next  of  kin  and  persons 
entitled  under  the  statute  of  distribution,  in  case  of  intestacy  ; 
their  ages,  if  infants,  and  whether  guardians  have  been  appointed 
or  not ;  the  fact  that  a  summons  had  been  regularly  served  and 
an  order  to  account  duly  made  by  the  surrogate ;  and  should  con- 
clude with  a  prayer  for  a  citation  to  be  issued  by  the  surrogate, 
under  his  seal  of  office,  to  be  directed  to  the  creditors  and  next  of 
kin,  and  the  legatees,  if  there  be  any,  and  requiring  them  to 
appear  before  the  surrogate  on  some  day  therein  to  be  specified, 
and  to  attend  the  settlement  of  the  account  of  his  administration 
of  the  estate.  (2  R.  S.  93,  §  60.  Toller,  494.)  The  petition 
should  be  sworn  to,  and  the  surrogate,  on  filing  it,  should  enter 
an  order  in  the  book  of  minutes  for  the  issuing  of  the  citation,  and 
at  the  same  time  adjourn  the  hearing  of  the  matter  for  which  the 
summons  issued,  to  the  same  time  and  place.     (App.  No.  77.) 

With  respect  to  the  mode  of  serving  this  citation,  the  statute 
provides  that  it  shall  be  served  personally  on  all  those  to  whom  it 
shall  be  directed,  living  in  the  county  of  the  surrogate,  at  least 
fifteen  days  before  the  return  thereof;  and  upon  those  living  out 
of  the  county,  or  who  or  whose  residence  may  be  unknovfn,  either 
personally,  fifteen  days  previously,  or  by  publishing  the  same  in 
a  newspaper  printed  in  the  county,  at  least  four  weeks  before  the 
return  thereof,  and  in  such  newspaper  printed  in  other  counties 
where  any  creditors  or  other  persons  interested  in  the  estate  of 
the  deceased  may  reside,  as  the  surrogate,  upon  due  inquiry  into 
the  facts,  shall  direct.     (2  R.  S.  93,  §  61.) 

If  any  of  the  creditors  or  persons  interested  in  the  estate, 
reside  in  any  other  state  of  the  United  States,  or  in  either  of  the 
provinces  of  Canada,  the  citation  is  required  to  be  published  once 
in  each  week,  for  three  months,  in  the  state  paper,  unless  such 


424  GENERAL  ACCOUNTING. 

citation  be  personally  served  on  such  creditors,  at  least  forty  days 
before  the  return  thereof;  and  if  there  be  any  such  creditors  or 
other  persons  interested,  residing  out  of  the  United  States,  and 
out  of  the  provinces  of  Canada,  the  citation  is  required  to  be  pub- 
lished as  aforesaid,  six  months.     {Id.  §  62.) 

The  revised  statutes  make  no  provision  in  case  any  of  the  par- 
ties are  minors,  and,  therefore,  leave  it  to  be  regulated  by  common 
law  rules.  Minors  are  not  esteemed  in  law  as  capable  of  conduct- 
ing or  defending  a  suit  for  themselves,  and  therefore  cannot  be 
deprived  of  any  of  their  rights  by  a  mere  neglect  to  appear. 
(Kellettv.  Ratlibun,  4 Paige,  102.)  We  had  occasion  to  consider 
the  mode  of  serving  a  citation  on  a  minor  in  a  former  chapter. 
{See  ante,  p.  157.)  It  should  be  served  in  the  presence  of  his 
legal  guardian,  or  in  the  presence  of  some  person  upon  whom  the 
actual  care  and  custody  of  the  minor  has  for  the  time  being  de- 
volved. The  citation,  in  such  a  case,  should  require  the  minor 
to  appear  according  to  law ;  that  is,  by  a  guardian  lawfully 
appointed.  If  the  minor  has  no  general  guardian,  or  if  the  gene- 
ral guardian  has  an  interest  adverse  to  the  rights  of  the  minor,  so 
that  he  cannot  act  as  guardian  in  relation  to  that  matter,  a  guar- 
dian ad  litem  should  be  appointed  by  the  surrogate  to  protect  the 
rights  of  the  minor.  This  appointment  is  made  by  an  order  in  the 
minutes,  on  filing  the  petition  of  the  minor,  if  above  the  age  of 
fourteen  years,  and  the  written  consent  of  the  guardian  duly 
proved.  If  the  infant  be  under  the  age  of  fourteen  years,  the 
application  should  be  made  by  some  one  in  his  behalf;  but  the 
consent  of  the  guardian  should  always  be  taken  in  writing  before 
the  appointment  is  made.  No  other  notice  need  be  given  to  the 
minor  of  an  intention  to  appoint  a  guardian  than  what  is  contained 
in  the  citation.  The  appointment  is  usually  made  under  the  seal 
of  the  court,  though  some  surrogates  issue  only  a  copy  of  the  order. 
The  former  is  deemed  the  preferable  course. 

The  distinction  in  the  spiritual  courts  between  an  infant  and  a 
minor  is,  that  the  former  is  so  denominated  if  under  seven  years 
of  age,  and  the  latter  from  seven  to  twenty-one.  The  revised 
statutes  have  made  the  age  of  fourteen  the  dividing  line  between 
the  two  classes.  One  person  may  be  appointed  guardian  ad  litem 
for  many  infants.     {In  the  matter  of  Frits,  2  Paige.  374.) 


APPOINTMENT  OF  GUARDIAN  AD  LITEM  425 

The  court  never  selects  a  guardian  ad  litem  for  an  infant  de- 
fendant on  the  nomination  of  the  adverse  party.  It  is  frequently 
necessary  for  the  guardian  seriously  to  contest  the  complainant's 
claim.  It  is  his  duty  in  every  case  to  ascertain  from  the  infant 
and  his  friends,  or  from  other  sources  of  information,  what  are  the 
legal  and  equitable  rights  of  his  ward.  If  the  infant  has  any 
substantial  rights  which  may  be  affected  injuriously  by  the  pro- 
ceedings in  the  cause,  or  if  the  claim  against  him  is  of  doubtful 
character,  it  is  also  the  duty  of  the  guardian  to  attend  before  the 
court  on  the  hearing ;  on  the  taking  of  testimony  in  the  cause  ; 
on  references,  and  on  all  proper  occasions,  to  bring  forward  and  pro- 
tect the  rights  of  the  ward.  And  if  the  guardian  neglects  his  duty, 
in  consequence  of  which  the  rights  of  the  infant  are  not  properly 
attended  to,  or  are  sacrificed,  he  may  be  punished  for  the  neglect. 
He  will,  in  such  a  case,  be  liable  to  the  infant  for  all  the  damage 
he  may  sustain.     (Knickerbacker  v.  Defreest,  2  Paige,  304.) 

The  116th  section  of  the  code  of  procedure  of  1852,  makes  pro- 
vision for  the  appointment  of  guardians  ad  litem  for  infants,  as 
well  when  he  is  plaintiff  as  when  he  is  defendant ;  and  as  well  on 
his  own  motion  as  on  the  motion  of  the  adverse  party,  when  the 
infant  fails  to  apply.  Though  the  code  of  procedure  does  not  ex- 
tend to  surrogates'  courts,  and  there  is  no  particular  legislative 
enactment  on  the  subject,  the  surrogate  will  be  justified  in  pro- 
tecting the  rights  of  infants,  to  follow  the  course  of  practice  adopted 
by  the  legislature  for  other  courts. 

The  guardian  ad  litem,  if  he  manages  the  matter  confided  to 
him  with  fidelity,  is  entitled  to  his  reasonable  expenses,  and  such 
compensation  for  his  services  as  the  court  may  deem  reasonable. 

As  the  creditors  of  the  deceased  are  to  be  made  parties  to  the 
suit,  it  was  obviously  necessary  that  some  means  should  be  adopt- 
ed to  discover  their  names  and  residence,  as  well  as  the  nature  and 
extent  of  their  demands  against  the  estate.  This  was  one  object 
of  the  provision  which  we  have  discussed  in  a  previous  chapter 
relative  to  the  call  of  the  executors  or  administrators,  for  the  pre- 
sentation of  claims  against  the  estate.  It  is  doubtful  whether 
creditors,  not  actually  served  with  notice,  or  appearing,  can  be 
bound  by  a  decree  for  a  final  account  upon  the  service  of  a  citation 
by  a  publication  merely,  as  is  provided  for  unknown  parties,  when 
54 


426  RENDERING  FINAL  ACCOUNT. 

the  executor  or  administrator  has  omitted  to  pursue  the  course 
prescribed  by  law  to  ascertain  who  the  creditors  are.  As  was  re- 
marked before,  when  the  regular  notice  to  exhibit  claims  has 
been  published  as  the  law  directs,  the  executors  or  administrators 
have  a  right  to  assume  that  the  claims  presented  in  pursuance  of 
it,  are  all  the  claims  which  exist  against  the  estate,  and  to  dis- 
tribute the  assets  in  their  hands  upon  that  hypothesis.  These 
creditors  thus  become  known  parties,  and  can  be  reached  by  a  cita- 
tion. Those  who  have  failed  to  avail  themselves  of  this  notice,  are 
nevertheless  entitled  to  the  notice  of  the  time  and  place  of  attend- 
ing before  the  surrogate,  for  the  final  accounting,  and  which  notice 
they  receive  by  means  of  the  publication  required.  That  notice  is 
sufficient  to  make  them  parties  to  the  accounting,  provided  the 
notice  to  exhibit  claims  shall  have  been  previously  given. 

The  statute  expressly  provides  that  any  creditors,  legatees  or 
other  persons  interested  in  the  estate  of  the  deceased  as  next  of 
kin  or  otherwise,  may  attend  the  settlement  of  such  account,  and 
contest  the  same  ;  and  they  and  the  executor  or  administrator 
shall  have  process  to  be  issued  by  the  surrogate  to  compel  the  at- 
tendance of  witnesses.  (2  R.  S.  94,  §  63.  Marre  v.  Ginochio, 
2  Bradf.  165.  Metzger  v.  Metzger,  1  id.  265.  Bank  of  Pough- 
keepsie  v.  Hasbrouck,  2  Seld.  216.) 

The  testimony  of  foreign  witnesses  may  be  taken  on  commission 
as  in  the  case  of  proving  wills.  (Laivs  of  1837,  ch.  460,  §  77,  page 
537.)     This  is  done  in  the  same  manner  as  in  courts  of  record. 

Section  III. 

Of  the  mode  of  rendering  the  account,  and  herein  of  auditors 
and  allowing  the  claims  of  the  executors  or  administrators 
against  the  estate,  and  of  their  comvnissions  and  expenses. 

On  the  return  of  the  citation  issued  on  the  application  of  the 
executors  or  administrators,  if  it  appears  by  affidavit  to  have  been 
regularly  served  and  published,  as  the  law  directs,  an  order  should 
be  entered  in  the  minutes  giving  leave  to  them  to  render  their  ac- 
count. If,  however,  any  of  the  parties  are  minors,  who  have  not 
appeared  by  guardian,  a  guardian  ad  litem  should  be  appointed  for 
them,  before  the  order  to  account  is  granted.     It  is  conceived  not 


RENDERING  FINAL  ACCOUNT.  427 

to  be  necessary  to  compel  the  appearance  of  any  of  the  defendants. 
If  they  make  default,  after  having  been  regularly  cited,  the  account 
rendered  and  finally  settled,  -will  be  equally  obligatory,  as  if  they 
appeared.     {Kellett  v.  Rathbun,  supra.) 

We  have  said  that  the  suit  brought  by  the  creditor,  on  which 
the  order  to  account  was  entered,  and  which  led  to  the  subsequent 
proceedings  of  the  executors  or  administrators  to  have  the  whole 
accounts  of  their  administration  finally  settled,  should  be  adjourn- 
ed until  the  return  of  the  citation  of  the  executors  or  administra- 
tors for  this  purpose.  The  two  actions  in  truth  become  parts  of 
one  and  the  same  proceeding.  Like  the  original  and  cross  bill  in 
equity,  both  proceed  together  and  constitute  but  one  suit.  The 
party  who  commences  this  action,  whether  he  be  creditor,  legatee 
or  party  entitled  to  a  distributive  share,  gains  no  advantage  by 
reason  of  the  priority  of  his  action.  All  are  to  be  paid  in  full,  if 
there  be  assets  enough,  and  if  not,  they  are  to  receive  such  pro 
rata  share  as  they  are  entitled  to  under  the  statute  of  distributions. 

On  the  return  day  of  the  citation,  or  such  other  day  to  which 
the  proceedings  may  be  continued  by  adjournment,  the  account  of 
the  executors  or  administrators  should  be  presented,  in  writing, 
accompanied  with  the  vouchers  for  all  debts,  legacies  and  expenses 
paid,  together  with  the  sums  claimed  by  them  for  their  commis- 
sions.    (For  forms,  see  App.  75  to  83.) 

Great  care  should  be  practiced  in  drawing  up  the  account,  that 
it  should  contain  a  truthful  statement  of  all  the  assets  for  which 
the  executors  or  administrators  are  accountable,  and  the  disposition 
that  has  been  made  of  the  same,  whether  by  losses  or  payment  of 
debts,  legacies  or  other  claims. 

It  should  charge  the  executors  with  the  amount  of  the  inventory, 
the  increase  of  the  assets  by  interest  or  otherwise,  and  any  other 
property  belonging  to  the  estate,  which  has  come  to  their  hands. 
It  should  credit  them  with  the  decrease  in  the  value  of  any  of  the 
assets  ;  with  such  debts  as  are  charged  in  the  inventory  and  prov- 
ed not  to  be  collectable,  and  were  therefore  lost  to  the  estate  with- 
out their  fault ;  for  moneys  paid  to  creditors,  legatees  and  next  of 
kin,  naming  each  with  the  amount  paid  and  time  of  payment ;  and 
the  necessary  expenses  of  the  administration,  including  their  own 
commissions.     These  statements  should  be  in  the  form  of  debtor 


428  RENDERING  FINAL  ACCOUNT. 

and  creditor,  and  should  be  sufficiently  in  detail  to  enable  those 
interested  in  the  settlement  to  make  their  objections,  and  the  sur- 
rogate properly  to  decide  them.  If  there  are  debts  in  the  course 
of  prosecution,  the  condition  of  the  suits  should  be  stated  ;  and  in 
like  manner,  if  actions  were  pending  against  them  to  recover  con- 
tested claims,  the  nature  of  the  action,  and  its  situation,  should  be 
set  forth. 

Subjoined  to  the  account  should  be  the  oath  in  writing  of  the 
executors  or  administrators,  or  of  one  of  them,  in  substance,  that 
the  account  according  to  the  best  of  their  knowledge,  information 
and  belief,  contains  a  full  and  true  account  of  all  their  receipts  and 
disbursements,  on  account  of  the  estate  of  the  testator  or  intestate, 
and  of  all  sums  and  property  belonging  to  the  estate  which  have 
come  to  the  hands  of  such  executors  or  administrators,  or  which 
have  been  received  by  any  other  person  by  their  order  or  authority 
for  their  use ;  and  that  they  do  not  know  of  any  error  or  omission 
in  the  account  to  the  prejudice  of  any  of  the  parties  interested  in 
the  estate  of  the  deceased.  (  Williams  v.  Purdy,  6  Paige,  166. 
Kellett  v.  Rathbun,  4  id.  102.  Gardner  v.  Gardner,  7  id.  112. 
Westervelt  v.  Gregg,  1  Barb.  Ch.  R.  469.  Wilcox  v.  Smith, 
26  Barb.  316.) 

The  vouchers  of  the  account  should  also  be  produced,  regularly 
labeled  and  numbered,  and  a  schedule  made  of  each  class  of  dis- 
bursements and  receipts,  and  be  accompanied  with  a  general  account 
current.  These  should  all  remain  with  the  surrogate  and  be  pre- 
served by  him  among  the  muniments  of  his  office.  The  executors 
or  administrators,  in  addition  to  the  general  oath  above  mentioned, 
may  be  examined  on  oath  touching  the  several  payments  made 
by  them,  and  also  touching  any  property  or  effects  of  the  deceased 
which  have  come  to  their  hands,  and  the  disposition  thereof. 
(2  R.  S.  92,  §  54.)  They  may  be  allowed  any  item  of  expenditure 
not  exceeding  twenty  dollars,  for  which  no  voucher  is  produced,  if 
such  item  be  supported  by  their  own  oath  positively  to  the  fact  of 
payment,  specifying  when  and  to  whom  such  payment  was  made, 
and  if  such  oath  be  uncontradicted ;  but  such  allowances  shall  not 
in  the  whole,  exceed  five  hundred  dollars  for  payments  in  behalf  of 
any  one  estate.     (Id.  §  55.) 

For  the  property  of  the  deceased,  perished  or  lost  without  the 


EXECUTOR'S  ACCOUNT— COMPENSATION".      429 

fault  of  the  executor  or  administrator,  the  latter  will  be  credited 
by  the  surrogate.     (Id.  56.) 

It  is  a  general  principle  in  cases  of  this  kind,  and  which  is  also 
declared  by  the  statute,  that  no  profit  shall  be  made  by  executors  or 
administrators  by  the  increase,  nor  shall  they  sustain  any  loss, 
by  the  decrease,  without  their  fault,  of  any  part  of  the  estate  ;  but 
they  shall  account  for  such  increase,  and  be  allowed  for  such  de- 
crease on  the  settlement  of  their  accounts.  (Id.  57.  Wilcox  v. 
Smith,  26  Barb.  316.) 

Previous  to  the  act  of  15th  April,  1817,  executors  and  administra- 
tors and  guardians  were  not  entitled  to  any  compensation  for  their 
services  in  the  discharge  of  their  trust.  By  that  act,  the  court  of 
chancery  was  empowered,  in  the  settlement  of  the  accounts  of 
guardians,  executors  and  administrators,  to  make  a  reasonable  al- 
lowance to  them  for  their  services,  over  and  above  their  expenses  ; 
and  when  the  rate  of  such  allowance  was  once  settled,  it  was  re- 
quired to  be  conformed  to  in  all  cases  of  the  settlement  of  such  ac- 
counts. (Mc  Whorter  v.  Benson,  Hopkins,  36.)  In  October, 
1817,  Chancellor  Kent,  by  a  general  order,  fixed  the  rate  of  com- 
pensation which  has  hitherto  remained.  It  is  incorporated  in  the 
revised  statutes  of  1830,  and  which  as  amended  by  the  act  of  1849, 
ch.  160,  is  as  follows  :  "  On  the  settlement  of  the  account  of  an 
executor  or  administrator,  the  surrogate  shall  allow  to  him  for  his 
services,  and  if  there  be  more  than  one,  shall  apportion  among  them 
according  to  the  services  rendered  by  them  respectively,  over  and 
above  his  or  their  expenses,  1.  For  receiving  and  paying  out  all  sums 
of  money  not  exceeding  one  thousand  dollars,  at  the  rate  of  five  dollars 
per  cent :  2.  For  receiving  and  paying  any  sums  exceeding  one 
thousand  dollars  and  not  amounting  to  five  thousand  dollars,  at 
the  rate  of  two  dollars  and  fifty  cents  per  cent :  3.  For  all  sums 
of  above  five  thousand  dollars,  at  the  rate  of  one  dollar  per  cent ; 
and  in  all  cases  such  allowance  shall  be  made  for  their  actual  and 
necessary  expenses,  as  shall  appear  just  and  reasonable."  (2  R.  S. 
93,  §  58,  as  amended  by  ch.  160,  Laws  of  1849.  3  R.  S.  179, 
5th  ed.)  The  provision  for  apportioning  the  compensation  when 
there  are  several,  according  to  the  services  rendered  by  each,  is 
founded  in  the  clearest  equity.  (  White  v.  Bullock,  20  Barb.  91. 
Drake  v.  Price,  1  Seld.  430.) 


430  EXECUTOR'S  ACCOUNT. 

If  the  will  makes  provision  for  a  specific  compensation  to  an  ex- 
ecutor, it  must  be  deemed  a  full  satisfaction  for  his  services,  in 
lieu  of  the  allowance  aforesaid,  or  his  share  thereof;  unless  such 
executor  shall,  by  a  written  instrument,  to  be  filed  with  the  sur- 
rogate, renounce  all  claim  to  the  specific  legacy.  (2  R.  8.  93, 
§  59.)  It  sometimes  becomes  a  question  whether  a  legacy  is  in- 
tended as  a  compensation  for  services,  or  as  a  gratuity  beyond  the 
statute  allowance.  This  subject  was  adverted  to  when  we  were 
treating  of  the  subject  of  legacies,  to  which  the  reader  is  referred. 

It  has  been  before  stated  that  since  the  revised  statutes  neither 
an  executor  or  administrator  can  retain  any  part  of  the  property 
of  the  deceased  in  satisfaction  of  his  own  debt  or  claim,  until  it 
shall  have  been  proved  to  and  allowed  by  the  surrogate,  and  then 
shall  be  entitled  to  no  preference  over  other  debts  of  the  same 
class.  (2  R.  S.  88,  §  33.)  It  is  in  this  stage  of  the  proceedings 
that  it  will  be  proper  for  the  executor  or  administrator,  who  has  a 
claim  in  his  own  favor  against  the  estate,  to  present  it  for  allow- 
ance. The  revised  statutes  did  not  prescribe  the  time  or  manner 
in  which  this  should  be  done  ;  but  by  the  act  of  1837,  chapter  460, 
§  37,  such  claim  was  directed  to  be  presented  for  allowance  on  the 
service  and  return  of  a  citation  for  that  purpose  directed  to  the 
proper  persons,  or  on  the  final  account. 

The  account  should  be  made  out  by  the  executor  or  administra- 
tor, in  the  same  manner  as  the  claims  of  other  creditors  of  the 
estate,  be  supported  by  proper  vouchers  and  verified  by  the  oath 
of  the  party  claiming  it.  It  must  be  proved,  also,  as  other  ac- 
counts are,  by  proper  evidence,  and  may  be  resisted  by  those  whose 
share  in  the  estate  will  be  diminished  by  its  allowance,  by  the  stat- 
ute of  limitations,  payment  or  any  other  defense  which  would  be 
available  in  the  case  of  any  other  creditor.  (  Williams  v.  Purdy, 
6  Paige,  166.  Treat  v.  Fortune,  2  Bradf.  116.  Rogers  v. 
Rogers,  3  Wend.  503.      Wilcox  v.  Smith,  26  Barb.  316.) 

The  provision  in  the  act  of  1837,  supra,  for  issuing  a  citation  to 
the  proper  persons,  in  case  the  executor  or  administrator  applies 
to  the  surrogate  for  the  allowance  of  the  claim  in  his  favor  against 
the  estate,  was  introduced  to  regulate  the  remedy  of  the  executor 
or  administrator,  in  cases  where  no  final  account  is  rendered,  so 
that  it  should  not  be  asserted  at  an  ex  parte  hearing  before  the 


EXECUTOR'S  ACCOUNT.  431 

surrogate  without  notice.  The  statute  does  not  say  upon  whom 
the  citation  must  be  served,  except  by  the  general  expression, 
"the  proper  persons."  The  "persons"  here  referred  to  are  those 
alone  who  would  be  prejudiced  by  the  allowance  of  the  claim ;  and 
whether  they  are  legatees  or  next  of  kin,  will  depend  upon  the  con- 
dition of  the  estate.  If  the  assets  are  sufficient  to  pay  all  the  debts, 
expenses  and  general  legacies,  the  residuary  legatee,  if  there 
be  one,  and  if  not,  the  next  of  kin,  to  whom  the  general  residue  be- 
longs, are  the  only  persons  who  have  any  interest  in  resisting  the 
claim,  and  are  the  persons  to  whom  the  citation  should  be  addressed 
in  such  a  case.     ( Treat  v.  Fortune,  supra.) 

It  is  the  policy  of  the  law  that  all  the  creditors  having  no  specific 
lien  or  statutory  preference  should  be  ratably  paid ;  and  as  the 
preference  formerly  obtained  by  a  priority  of  suit  is  abolished, 
there  existed  no  reason  for  retaining  the  common  law  preference 
of  the  debt  of  an  executor  or  administrator.  The  mode  of  enforcing 
the  payment  of  claims  against  the  estates  of  deceased  persons  hav- 
ing been  changed,  and  the  remedy  transferred  from  the  courts 
of  common  law  and  equity  to  that  of  the  surrogate,  it  became  neces- 
sary that  the  latter  court  should  have  power  to  investigate  and  de- 
cide on  the  validity  of  the  claim  belonging  to  an  executor  or  ad- 
ministrator against  the  estate  which  he  represents.  In  an  action 
at  common  law,  by  a  person  interested  in  the  estate,  against  an 
executor  or  administrator,  who  interposed  a  plea  of  retainer,  for 
his  own  debt,  it  was  always  competent  for  the  plaintiff  to  reply  in 
such  manner,  as  to  require  the  former  to  prove  the  debt  on  the 
trial.  If  such  debt  was  given  in  evidence  under  the  plea  of  plene 
administravit,  the  plaintiff  might,  in  like  manner,  rebut  it  by  show- 
ing payment  by  the  deceased  in  his  lifetime,  or  other  matter  de- 
priving the  executor  or  administrator  of  a  right  of  retainer. 
(2  Starkie's  Ev.  324.)  There  is  nothing  novel,  therefore,  in  the 
principle  that  the  debt  of  an  executor  or  administrator  must,  be- 
fore allowance,  be  proved  to  the  surrogate.  The  retainer  by  an 
executor  or  administrator  was  never  permitted,  before  the  revised 
statutes,  unless  the  debt  was  proved  on  the  trial  to  the  satisfaction 
of  the  court,  in  which  the  action  was  depending,  or  confessed  by 
the  pleadings.  {Rogers  v.  Rogers,  supra.)  In  other  words,  the 
executors  or  administrators  were  never  authorized  to  decide  in  their 


432  AUDITOKS. 

own  favor,  and  without  appeal,  how  much  should  be  allowed  to 
them  on  any  claim  they  might  present  against  the  estate.  The 
parties  in  interest  could  always,  by  a  bill  in  equity,  at  least,  and 
often  in  an  action  at  law,  question  the  validity  of  the  claim  and 
require  it  to  be  passed  upon  by  the  appropriate  tribunal. 

The  hearing  of  the  allegations  and  proofs  of  the  respective  par- 
ties may  be  adjourned  from  time  to  time  as  shall  be  necessary. 
(2  R.  S.  94,  §  64.)  The  rules  of  evidence  in  such  cases  are  those 
which  prevailed  in  courts  of  equity  prior  to  the  code  of  procedure  ; 
the  latter  system  of  practice  for  the  examination  of  interested  wit- 
nesses and  parties  not  applying  to  proceedings  in  surrogates'  courts. 
(Marre  v.  Gi?iochio,  2  Bradf.  165.)  The  objections  to  an  account 
should  be  stated  in  the  form  of  distinct  and  specific  allegations, 
surcharging  for  omissions  when  the  estate  ought  to  have  been 
credited,  and  falsifying  for  improper  debits  against  the  estate. 
{Metzger  v.  Metzger,  1  Bradf.  265.    Willardls  Eq.  Juris.  142.) 

In  this  stage  of  the  proceedings,  on  the  rendering  a  final  account, 
the  surrogate  is  empowered  to  appoint  one  or  more  auditors  to 
examine  the  accounts  presented  to  him,  and  to  make  a  report 
thereon,  subject  to  his  confirmation.  An  allowance,  not  exceeding 
two  dollars  a  day,  may  be  made  to  each  of  them  for  their  services, 
to  be  paid  out  of  the  estate.  (2  R.  S.  94,  &  64.)  The  order  for 
their  appointment  should  be  entered  in  the  minutes. 

With  respect  to  the  powers  and  duties  of  auditors,  the  statute 
affords  little  or  no  light.  These  officers  are  to  be  distinguished 
from  referees,  provided  for  in  other  parts  of  the  statute,  and  from 
masters  and  examiners  in  chancery  under  the  former  practice  of 
the  courts.  They  were  probably  borrowed  from  the  practice  in  the 
old  action  of  account,  without  conferring  upon  them  the  power 
which  the  legislature  conferred  upon  auditors  in  that  action.  It 
will  be  observed,  that  though  the  action  of  account  was  retained^by 
the  revised  statutes,  in  a  modified  form,  the  office  of  auditors  was 
abolished  and  that  of  referees  substituted.  The  action  is  now 
superseded  by  the  code  of  procedure. 

The  duties  of  an  auditor,  as  far  as  can  be  gathered  from  the 
statute,  are  to  examine  the  vouchers  and  accounts  rendered ;  to  see 


AUDITOR.  433 

■whether  the  same  arc  correctly  stated  ;  to  restate  the  accounts,  if 
necessary  ;  to  settle  questions  with  regard  to  the  computation  of 
interest,  the  appropriation  of  payments,  apportionment,  exonera- 
tion, contribution,  charge  and  discharge,  legacy,  satisfaction,  ad- 
vancement and  such  other  matters  as  properly  arise  on  the  stating 
of  accounts  in  courts  of  equity.  (See  Willard's  Eq.  Juris,  title 
Account,  passim.)  He  has  no  power  to  administer  an  oath  to  wit- 
nesses, nor  is  he  required  to  take  an  oath  of  office  before  entering 
on  the  discharge  of  his  duties. 

The  appointment  of  an  auditor  should  not  be  made  until  all  the 
proofs  have  been  taken  in  the  cause,  and  the  executor  or  administra- 
tor has  been  examined  on  oath  before  the  surrogate,  if  such  examin- 
ation on  oath  has  been  required.  Then,  the  accounts,  vouchers, 
pleadings  and  proofs  of  every  description  may  be  referred  to  the 
auditor  to  make  and  state  the  accounts.  As  any  creditor,  legatee 
or  other  person  interested  in  the  estate  as  next  of  kin,  or  otherwise, 
may  attend  the  settlement  of  such  account  and  contest  the  same 
before  the  surrogate,  it  is  presumed  that  they  may  also  attend 
before  the  auditor,  on  his  examination  and  statement  of  the  ac- 
counts. It  is  a  significant  fact  to  show  that  the  auditor  has  no 
power  to  examine  witnesses  before  him  upon  oath,  that  the  63d 
section  allows  of  process  to  compel  the  attendance  of  witnesses 
before  the  surrogate  on  the  final  accounting,  and  the  64th  section, 
providing  for  the  appointment,  powers  and  duties  of  auditors,  is 
silent  on  that  subject.  (See  on  the  subject  of  auditors,  Wester- 
velt  v.  Gregg,  1  Barb.  Ch.  R.  469 ;  Wilcox  v.  Smith,  26  Barb. 
316  ;  and  Gardiner  v.  Gardiner,  7  Paige,  112.) 

But  there  are  numerous  questions,  as  we  have  shown,  of  great 
importance,  which  may  arise  on  the  statement  of  the  accounts  by 
the  auditor.  If  his  duties  are  faithfully  discharged,  his  report  will 
relieve  the  surrogate  of  much  labor  in  making  the  final  disposition 
of  the  cause.  It  is  presumed  that  on  the  coming  in  of  the  audit- 
or's report,  and  before  its  confirmation,  the  parties  in  interest  are 
entitled  to  be  heard  before  the  surrogate  on  the  question  of  such  con- 
firmation, and  after  it  has  been  confirmed,  to  be  heard  on  the  form  of 
the  final  decree.  These  matters  are  left  unprovided  for  by  the  statute, 
55 


434  FINAL  SETTLEMENT. 

and  naturally  belong  to  the  surrogate,  to  regulate  as  a  matter  of 
practice,  according  to  the  equity  of  each  case.* 


Section  IV. 

Of  the  effect  of  the  final  settlement ;  of  the  form  of  the  decree 
thereon  ;  distribution,  and  the  mode  of  enforcing  it. 

The  statute  has  prescribed  the  effect  which  shall  be  given  to  a 
final  settlement  before  the  surrogate,  by  declaring  that  it  shall  be 
conclusive  evidence  against  all  creditors,  legatees,  next  of  kin  of 
the  deceased,  and  all  persons  in  any  way  interested  in  the  estate, 
upon  whom  the  citation  shall  have  been  served,  either  personally, 
or  by  publication  as  therein  directed,  of  the  following  facts,  and  of 
no  others  : 

1.  That  the  charges  made  in  such  account  for  moneys  paid  to 
creditors,  to  legatees,  to  the  next  of  kin  and  for  necessary  expenses, 
are  correct  : 

2.  That  such  executor  or  administrator  has  been  charged  all  the 
interest  for  moneys  received  by  him,  and  embraced  in  his  account, 
for  which  he  was  legally  accountable  : 

3.  That  the  moneys  stated  in  such  account  as  collected,  were  all 

*  The  6th  chapter  of  Part  II  of  the  revised  statutes,  as  reported  by  the  revisers, 
contemplated  the  rendering  of  a  final  account  in  all  cases.  In  passing  through  the 
legislature  it  was  so  modified  as  to  leave  it  optional  with  the  executors  or  admin- 
istrators to  render  such  account  or  not.  They  were  left  liable,  however,  to  be 
called  on,  by  any  person  interested,  to  render  an  account.  The  33d  section  (being 
the  30th  section  in  the  report)  giving  no  preference  to  the  claims  of  executors  or 
administrators,  and  taking  away  the  right  of  retainer  of  any  thing  except  what  was 
proved  to  and  allowed  by  the  surrogate,  was  a  necessary  part  of  the  system.  The 
debt  due  to  an  executor  or  administrator  was  thus  put  on  a  footing  with  the  other 
debts  ;  and  as  the  other  creditors  could  not  cite  the  executors  or  administrators  to 
account  till  after  eighteen  months,  so  the  executors  or  administrators  could  not  cite 
the  persons  interested  to  attend  the  settlement  of  his  accounts  till  after  eighteen 
months  from  the  date  of  his  letters.  This  section  was  left  unaltered,  and,  therefore, 
applied  only  to  the  case  of  rendering  a  final  account.  And  this  made  it  advisable, 
in  1837,  to  adopt  the  37th  section  of  the  act  of  that  year,  chapter  460,  to  enable  the 
executor  or  administrator,  in  case  he  did  not  wish  a  final  accounting,  or  for  any 
reason  desired  to  have  his  own  claim  against  the  estate  allowed,  at  an  earlier  day, 
to  cite  the  persons  interested  before  the  surrogate,  for  the  purpose  of  having  his 
claim  examined  and  allowed. 


FINAL  SETTLEMEMT— TRUSTS.  435 

that  were  collectable,  on  the  debts  stated  in  such  account,  at  the 
time  of  the  settlement  thereof: 

4.  That  the  allowance,  in  such  account,  for  the  decrease  in  the 
value  of  any  assets,  and  the  charges  therein  for  the  increase  in 
such  value,  were  correctly  made. 

The  revised  statutes  as  originally  enacted,  provided  that  the 
preceding  section  should  not  extend  to  any  case  where  an  executor 
is  liable  to  account  to  a  court  of  equity,  by  reason  of  any  trust, 
expressly  created  by  any  last  will  and  testament.  (2  R.  S.  94, 
§  66.)  But  under  that  section  the  chancellor  held  in  Stagg  v. 
Jackson,  2  Barb.  Ch.  R.  86,  decided  in  January.  1847,  and 
affirmed  by  the  court  of  appeals,  1  Comstock,  206,  that  where  a  will 
directs  real  and  personal  estate  to  be  sold  by  the  executors,  and 
makes  but  one  fund  of  the  real  and  personal  estate  of  the  testator, 
for  the  purposes  of  the  will,  the  surrogate  had  jurisdiction  to  call 
the  executors  to  account  for  the  proceeds  of  the  real  estate,  and  for 
the  rents  and  profits  thereof  received  by  him  previous  to  such  sale, 
under  and  by  virtue  of  the  power  in  the  will.  Upon  the  doctrine 
of  equitable  conversion,  the  proceeds  of  the  real  estate  become 
legal  assets  in  the  hands  of  the  executor,  for  which  he  is  bound  to 
account  as  personal  estate. 

But  notwithstanding  that  decision,  there  were  still  numerous 
cases  of  trusts  over  which  the  surrogate  had  no  jurisdiction  ;  and 
for  which  he  could  not  cite  the  executors  to  account,  or  settle  their 
accounts  if  voluntarily  submitted  to  his  jurisdiction.  To  remedy 
this  defect,  the  66th  section  was  so  changed  by  the  act  of  1850, 
ch.  272,  (3  R.  S.  181,  5th  ed.)  that  any  trustee  created  by  any 
last  will  or  testament,  or  appointed  by  any  competent  authority  to 
execute  any  trust  created  by  any  such  last  will  or  testament,  or 
any  executor  or  administrator  with  the  will  annexed,  authorized  to 
execute  any  such  trust,  may  from  time  to  time  render  and  finally 
settle  his  accounts  before  the  surrogate  in  the  manner  provided  by 
law  for  the  final  settlement  of  accounts  of  executors  or  administra- 
tors, and  may,  for  that  purpose,  obtain  and  serve,  in  the  same 
manner,  the  necessary  citations  requiring  all  persons  interested  to 
attend  such  final  settlement,  and  the  decree  of  the  surrogate  on 
such  final  settlement  is  made  subject  to  appeal  in  the  manner  pro- 
vided for  an  appeal  from  a  decree  of  a  surrogate  on  the  final  set- 


436  FINAL  DECREE. 

tlement  of  the  accounts  of  executors  and  administrators,  and  the 
like  proceedings  are  to  be  had  on  such  appeal.  The  final  decree 
of  the  surrogate  on  the  final  settlement  of  an  account  provided  for 
in  this  section  as  amended,  or  the  final  determination  of  the  ap- 
pellate tribunal,  in  case  of  an  appeal,  are  declared  to  have  the  same 
effect  as  the  decree  or  judgment  of  any  other  court  of  competent 
jurisdiction,  on  the  final  settlement  of  such  accounts  and  of  the 
matters  relating  to  such  trust,  which  shall  have  been  embraced  in 
such  accounts  or  litigated  or  determined  on  such  settlement 
thereof. 

This  provision  operates  greatly  to  enlarge  the  jurisdiction  of 
the  surrogate  in  cases  where  the  executor,  or  testamentary  trus- 
tee, elects  to  submit  himself  voluntarily  to  the  jurisdiction  of  the 
surrogate ;  which  he  may  do  when  cited  to  account,  or.  volunta- 
rily, after  the  expiration  of  eighteen  months,  as  will  be  shown 
more  at  large  in  the  next  section.  But,  it  is  believed,  he  cannot 
be  compelled  to  render  such  account,  except  in  cases  where  there 
has  been  an  equitable  conversion  of  the  real  and  personal  estate 
into  one  fund,  as  in  Stagg  v.  Jackson,  and  kindred  cases. 

Whenever  an  account  is  rendered  and  finally  settled,  except 
when  an  executor  or  administrator  accounts  to  his  successor  in  the 
administration,  if  it  appears  to  the  surrogate  that  any  part  of  the 
estate  remains  to  be  paid  or  distributed,  he  should  make  a  decree 
for  the  payment  and  distribution  of  what  shall  so  remain,  to  and 
among  the  creditors,  legatees,  widow  and  next  of  kin  to  the  de- 
ceased, according  to  their  respective  rights  ;  and  in  such  decree 
settle  and  determine  all  questions  concerning  any  debt,  claim, 
legacy,  bequest,  or  distributive  share  ;  to  whom  the  same  shall  be 
payable ;  and  the  sum  to  be  paid  to  each  person.  (2  R.  S.  95, 
§  71.  Bank  of  Poughkeepsie  v.  Hasbrouck,  2  Seld.  216.  Camp- 
bell v.  Brum,  1  Bradf.  224.) 

As  choses  in  action  are  not  deemed  assets  until  reduced  to 
possession,  and  as  the  statute  contemplates  a  speedy  settlement 
of  the  estate,  it  was  obviously  necessary  that  provision  should  be 
made  for  the  transfer  of  securities  belonging  to  the  estate,  as  well 
as  for  the  indemnity  of  the  executor  or  administrator  against 
claims  not  due,  or  for  which  a  suit  is  depending.  Accordingly  it 
is  enacted  that  in  the  order  for  final  settlement  and  distribution,  the 


FINAL  LEGACIES.  437 

surrogate  may,  upon  the  consent  in  writing  of  the  parties  who 
shall  have  appeared,  direct  the  delivery  of  any  personal  property 
which  shall  not  have  been  sold,  and  the  assignment  of  any  mort- 
gages, bonds,  notes,  or  other  demands  not  yet  due,  among  those 
entitled  to  payment  or  distribution,  in  lieu  of  so  much  money  as 
such  property  or  securities  may  be  worth,  to  be  ascertained  by 
the  appraisement  and  oath  of  such  persons  as  the  surrogate  shall 
appoint  for  that  purpose.     (2  R.  IS.  95,  §  72.) 

Subsequent  sections  of  the  statute  empower  the  assignee  of  such 
securities  to  sue  and  recover  upon  the  same,  at  his  own  costs  and 
charges,  in  the  name  of  the  executor  or  administrator  making  such 
assignment  or  otherwise,  in  the  same  manner  as  such  executor  or 
administrator  might  have  done.  Under  the  code  of  procedure  it 
is  presumed  the  action  may  be  brought  in  the  name  of  the  person 
to  whom  the  assignment  was  made,  he  being  the  real  party  in 
interest.     {Code,  §§  111  to  113.) 

It  may  happen  that  at  the  making  of  the  final  decree,  there  are 
claims  existing  against  the  estate  of  the  deceased  which  are  not 
due,  or  upon  which  a  suit  is  then  pending.  In  such  a  case  the 
surrogate  should,  upon  the  representation  of  the  executors  or 
administrators,  allow  a  sum  sufficient  to  satisfy  such  claim,  or  the 
proportion  to  which  it  may  be  entitled,  to  be  retained  for  the  pur- 
pose of  being  applied  to  the  payment  of  such  claim  when  due,  or 
when  recovered,  or  of  being  distributed  according  to  law.  The 
sum  so  retained  may  be  left  in  the  hands  of  the  executor  or  ad- 
ministrator, or  may  be  directed  by  the  surrogate  to  be  deposited 
in  some  safe  bank,  to  be  drawn  only  on  the  order  of  the  surrogate. 
(2  R.  S.  96,  §  74.) 

This  representation  of  the  executor  or  administrator  should  be 
in  writing.  The  most  eligible  mode  of  presenting  the  subject  for 
the  action  of  the  surrogate  is  by  petition,  duly  verified  by  affida- 
vit. The  order  consequent  thereon  should  be  embraced  in  the 
final  decree. 

The  statute  does  not  contemplate  any  enrollment  of  the  final 
decree.  It  is  merely  required  to  be  entered  at  large  in  the  book 
of  minutes.  It  thus  becomes  a  record,  and  may  be  exemplified 
under  the  seal  of  the  court,  if  it  is  required  to  be  used  as  evidence 
in  any  other  court.     (2  R.  S.  222.) 


438  ENFORCING  FINAL  DECREE. 

If  the  decree  be  against  the  executor  or  administrator,  requiring 
him  to  pay  money,  it  may  be  docketed  in  the  office  of  the  clerk  of  the 
county  court,  and  in  New  York  in  the  office  of  the  clerk  of  the  court 
of  common  pleas,  and  thenceforth  be  a  lien  on  all  the  lands,  tenements 
and  real  estate  of  every  person  against  whom  it  is  entered,  and  execu- 
tion may  be  issued  thereon  in  the  same  manner  as  though  the 
same  was  a  judgment  obtained  in  said  court.  {Laws  of  1837, 
ch.  460,  §§  63,  64.  Laws  of  1844,  p.  91,  amending  sar/ie.  3  R. 
>S.  366,  5th  ed.)  The  form  of  a  final  decree  should  be  similar  to 
a  final  decree  in  the  late  court  of  chancery,  in  similar  cases.  It 
should  recite  enough  of  the  proceedings  to  give  a  full  understand- 
ing of  the  matters  in  controversy,  and  should  be  so  framed  as  to 
settle  and  determine  all  questions  concerning  any  debt,  claim, 
legacy,  bequest,  or  distributive  share  ;  to  whom  payable,  and  the 
amount  to  be  paid  to  each  person.  (2  R.  S.  95,  §  71.  Campbell 
v.  Bruen,  1  Bradf  224.) 

The  principles  on  which  distribution  is  to  be  made,  and  the  order 
of  paying  debts,  have  already  been  discussed.  In  like  manner  we 
have  also  treated  of  the  various  expenses  attending  the  administra- 
tion of  the  estate,  and  the  allowances  to  be  made  to  the  executor 
or  administrator.  It  is  not  necessary,  under  the  existing  law,  to 
record  at  length  the  accounts  settled  and  allowed  ;  but  they  are  to 
be  filed  with  the  surrogate,  and  he  is  required  to  record,  with  his 
decree,  a  summary  statement  of  the  accounts  as  the  same  shall  be 
finally  settled  and  allowed  by  him  ;  and  which  statement  shall  be 
referred  to  and  taken  as  part  of  the  final  decree.  (L.  of  1837,  ch. 
460,  §  2.     3  R.  S.  365,  5th  ed.) 

There  are,  in  general,  three  modes  of  enforcing  the  performance 
of  a  final  decree.  1.  If  it  be  for  the  payment  of  money,  the  filing  and 
docketing  of  the  decree  in  the  clerk's  office  and  the  issuing  of  an  exe- 
cution thereon  out  of  the  county  court,  or  in  New  York  out  of  the 
court  of  common  pleas,  as  has  been  above  stated,  will  afford  a 
speedy  and  effectual  remedy,  and  the  one  first  to  be  resorted  to. 
(See  ante.  Doran  v.  Detnpsey,  1  Bradf.  490.)  2.  Obedience 
to  a  final  decree  may  also  be  enforced  by  a  prosecution,  under  the 
direction  of  the  surrogate,  of  the  bond  of  the  executor  or  adminis- 
trator.    The  money  collected  on  the  bond  must  be  applied  in  satis- 


ENFORCING  FINAL  DECREE.  439 

faction  of  the  decree,  in  the  same  manner  as  it  ought  to  have  been 
applied  by  the  executor  or  administrator.  The  like  remedy  is  also 
extended  to  a  decree  for  rendering  an  account,  or  for  the  payment 
of  a  debt,  legacy  or  distributive  share.  (L.  q/"1830,  ch.  320.  §  23. 
3  R.  S.  204,  5th  ed.)  If  the  decree  be  for  the  payment  of  a  sum 
of  money  by  one  party  to  another,  an  action  of  debt  will  lie  there- 
for, whether  such  sum  was  for  a  legacy  or  a  debt.  (Dubois  v. 
Dubois,  6  Coweu,  494.)  3.  By  attachment  against  the  person  of 
the  executor  or  administrator  who  neglects  or  refuses  to  comply 
.with  the  decree.  (2  R.  JS.  222,  §  6,  sub.  4.  Dor  an  v.  Dempsey, 
supra.  Seaman  v.  Duryea,  1  Kern.  324.)  This  attachment  is 
required  to  be  in  form  similar  to  that  used  by  the  late  court  of 
chancery  in  analogous  cases.     {Id.) 

Although  the  court  of  chancery  was  abolished  by  the  constitu- 
tion of  1846,  and  its  jurisdiction  vested  in  other  tribunals,  yet,  as 
the  practice  of  that  court  in  proceeding,  by  attachment,  to  enforce 
civil  remedies  was  made  applicable  to  surrogates'  courts,  and  the 
practice  of  these  courts  has  been  left  unaffected  by  the  code,  it  be- 
comes necessary  to  refer  briefly  to  the  practice,  in  this  respect,  of 
the  court  of  chancery  in  1830,  and,  indeed,  into  its  practice  ante- 
rior to  the  present  constitution. 

In  the  case  of  The  Albany  City  Bank  v.  Schermerhorn, 
(9  Paige,  374,)  the  chancellor  observed  that  the  statute  relative 
to  proceedings  as  for  contempt  to  enforce  civil  remedies  and  to 
protect  the  rights  of  parties  in  civil  actions,  has  prescribed  two 
modes  of  proceeding,  where  the  misconduct  complained  of  is  not 
committed  in  the  immediate  view  and  presence  of  the  court ;  one 
of  which  is  by  an  order  on  the  accused  party  to  show  cause,  at 
some  future  time,  to  be  specified  in  the  order,  why  he  should  not 
be  punished  for  his  alleged  misconduct ;  and  the  other  is  to  grant 
an  attachment  to  arrest  the  accused  and  bring  him  before  the  court 
to  answer  for  the  misconduct.  (2  R.  S.  535,  §  5.)  In  either  mode 
of  proceeding,  however,  the  party  complaining  of  the  alleged  mis- 
conduct, must  produce  proof  thereof,  by  affidavit  or  a  sworn  peti- 
tion or  other  legal  evidence,  as  the  foundation  of  the  proceedings. 
It  must  thus  be  shown  that  a  certified  copy  of  the  decree  has  been 
served  on  the  executor  or  administrator,  that  he  was  requested  to 
comply  with  it,  and  that  he  had  neglected  or  refused  to  do  so.    An 


440  FINAL  ACCOUNTS. 

attachment  may  thereupon  be  issued,  an  order  for  that  purpose 
having  been  first  entered. 

This  branch  of  the  proceedings  will  generally  be  conducted  by 
professional  gentlemen,  and  the  mode  of  practice  will  be  found  in 
books  devoted  to  the  practice  of  the  court  of  chancery,  and  is  fully 
detailed  in  the  statute  and  by  the  chancellor  on  several  occasions. 
(2  R.  S.  222.  Id.  534  to  540.  The  Albany  City  Bank  v.  Scher- 
merhorn,  supra.  The  People  v.  Rogers,  2  Paige,  104.)  It  is 
not  deemed  expedient  to  detail  more  at  length,  in  this  work,  the 
course  of  a  proceeding  which  will  be  found  described  fully  by  Mr. 
Barbour,  in  his  practice  of  the  court  of  chancery.     (App.  75  to  83.) 

Section   V. 

Of  rendering  an  account  by  an  executor  or  administrator  in 
other  cases,  and  of  costs. 

We  have  hitherto  treated  only  of  the  rendering  an  account  for  a 
final  settlement  when  the  executor  or  administrator,  upon  being 
required  by  the  surrogate  to  account,  desires  to  have  the  same 
finally  settled.  (2  R.  S.  93,  §  60.)  But  there  is  another  pro- 
ceeding in  which  the  executor  or  administrator  is  voluntary,  and 
which  leads  to  the  same  result.  By  the  70th  section  (2  R.  iS.  95) 
it  is  enacted  that  after  the  expiration  of  eighteen  months  from  the 
granting  of  letters  testamentary,  or  of  administration,  an  executor 
or  administrator  may  render  a  final  account  of  all  his  proceedings 
to  the  surrogate  who  appointed  him,  although  not  cited  to  do  so. 
To  render  this  account  final  and  conclusive,  a  citation  must  be 
obtained  from  the  surrogate  to  all  persons  interested  in  the  estate 
of  the  deceased,  to  attend  the  final  settlement  of  the  accounts  of 
the  executor  or  administrator.  This  citation  must  be  served  in 
the  same  manner  and  the  same  proceedings  must  be  had  for  a 
final  settlement,  and  with  the  like  effect  in  all  respects  as  in  the 
case  of  a  settlement,  at  the  instance  of  a  creditor,  legatee,  or  next 
of  kin.  These  proceedings  have  already  been  described  in  the 
preceding  section  of  this  work. 

The  final  decree  operates  as  a  discharge  to  any  other  or  further 
accounting  by  the  executor  or  administrator  as  to  the  matters 
embraced  in  the  account  settled.     In  this  respect  it  is  as  conclu- 


GENEI1AL  ACCOUNT.  441 

sive  as  the  decree  of  the  court  of  chancery  on  a  bill  to  account. 
It  is,  indeed,  a  substitute  for  the  quietus  formerly  granted  by  the 
court  of  probates.  It  is  a  cheap  and  expeditious  mode  of  settling 
an  estate,  without  resorting  to  a  bill  in  equity. 

An  executor  or  administrator  did  not  render  an  account  in  the 
spiritual  court  unless  cited  to  do  so  by  some  person  having  an 
interest  in  the  estate.  (2  Wins.  Ex.  1776.  2  Burn's  E.  L., 
quarto  ed.  765.)  The  provision  of  our  statute  "which  permits  such 
an  account  to  be  rendered  and  finally  settled,  on  the  application 
of  the  executor  or  administrator  alone,  is  an  obvious  improvement. 

In  the  ecclesiastical  courts,  where  the  ordinary  found  the  ac- 
count to  be  true  and  perfect,  he  pronounced  for  its  validity ;  and 
the  executor  or  administrator  was  thereafter  acquitted  and  dis- 
charged from  further  molestation  and  suits,  and  was  not  liable  to 
be  again  called  to  an  account.  The  statute  of  1  Ed.  6,  c.  2,  pro- 
vided that  all  acquittances  of  and  from  all  accounts  made  by 
executors,  administrators  or  collectors  of  goods  of  any  dead  man 
should  be  made  in  the  name  of  the  king,  as  in  writs  original  or 
judicial  at  common  law.  (2  Bum's  E.  L.,  quarto  ed.  766.) 
Under  our  statute,  a  copy  of  the  final  decree  in  account  seems  to 
be  all  that  is  required  by  the  executor  or  administrator,  as  the 
evidence  of  his  discharge. 

The  liability  to  account,  and  the  right  to  cite  all  persons  inter- 
ested in  the  estate  to  attend  the  settlement  thereof,  have  been 
extended  to  an  executor  or  administrator,  whose  authority  has 
been  revoked  or  superseded.  Thus,  it  is  enacted  that  whenever 
the  authority  of  an  executor  or  administrator  shall  cease,  or  be 
revoked  or  superseded,  for  any  reason,  he  may  be  cited  to  account 
before  a  surrogate,  at  the  instance  of  the  person  succeeding  to  the 
administration  of  the  same  estate,  in  like  manner  as  before  pro- 
vided for  a  creditor.  (2  R.  S.  £5,  §  68.)  And  in  every  such  case 
the  following  section  enacts,  that  the  executor  or  administrator 
may  cite  the  person  succeeding  to  the  administration  of  the  same 
estate,  to  attend  an  account  and  settlement  of  his  proceedings, 
before  the  surrogate,  by  giving  such  Teasonable  notice  as  the  sur- 
rogate shall  direct,  and  by  serving  and  publishing  in  the  manner 
herein  before  provided,  a  citation  to  creditors  and  others  ;  and 
56 


442  COSTS— SURROGATES'  FEES. 

such  settlement  and  account  it  is  declared  shall  have  the  like 
effect  in  all  respects  as  in  the  case  of  a  settlement  at  the  instance 
of  a  creditor. 

In  the  ecclesiastical  courts  costs  are  given  in  matters  of  ac- 
count, both  in  original  suits  and  on  appeal.  This  practice,  it 
seems,  did  not  prevail  here  before  the  revised  statutes  in  1830.  In 
Reed  v.  Vanderheyden,  5  Cowen,  719,  it  seems  to  have  been 
taken  for  granted  by  the  members  of  the  court  of  errors,  that  the 
surrogate  had  no  authority,  at  that  early  day,  to  award  costs. 
Shultz  v.  Pidver,  3  Paige,  185.  Western  v.  Romaine,  1  Bradf. 
37.     Burtis  v.  Dodge,  1  Barb.  Ch.  R.  91.) 

This  defect  is  now  removed  by  the  revised  statutes,  which  pro- 
vide, that  in  all  cases  of  contests  before  a  surrogate's  court,  such 
court  may  award  costs  to  the  party  in  the  judgment  of  the  court 
entitled  thereto,  to  be  paid  either  by  the  other  party  personally, 
or  out  of  the  estate  which  shall  be  the  subject  of  such  controversy. 
(2  R.  S.  223,  §  10.)  The  act  of  1837,  ch.  460,  §  70,  provided 
that  when  costs  are  allowable,  they  shall  be  taxed  according  to  the 
same  rate  allowed  for  similar  services  in  the  courts  of  common  pleas. 
Although  those  courts  have  since  been  abolished  by  the  constitu- 
tion of  1846,  and  various  changes  have  been  made  in  the  fee  bill 
since  that  time,  it  is  believed  that  the  fee  bill  existing  when  the 
act  of  1837,  ch.  460,  took  effect,  is  still  to  govern  the  rate  of  com- 
pensation in  cases  of  this  kind. 

The  principles  on  which  costs  are  to  be  allowed  or  refused  in 
controversies  before  the  surrogate,  are  analogous  to  those  which 
guided  the  discretion  of  the  chancellor  in  litigation  in  the  old 
court  of  chancery.  The  same  rules  prevail  now  in  the  supreme 
court,  in  those  cases  where  costs  are  left  by  the  code  to  the  dis- 
cretion of  the  court. 

The  fees  of  the  surrogate  for  services  done  and  performed  are 
prescribed  by  the  statute  of  May  7, 1844.  {Ch.  300,  §  2.  3  R.  S. 
919  to  922.)  Of  these  an  account  is  kept  by  the  surrogate  in  the 
book  of  fees,  which  is  required  to  be  open  at  all  reasonable  times 
for  inspection,  like  his  other  books  of  record.     (L.  of  1837,  ch. 


GUARDIAN  AND  WARD.  443 

460,  §  3.)  As  the  surrogate  is  now  paid  by  a  salary,  and  is  re- 
quired to  account  for  the  fees  and  perquisites  received  by  him, 
■with  the  financial  officer  of  the  county,  there  is  no  temptation  to 
multiply  charges  unnecessarily. 


CHAPTER  VI. 

OP    GUARDIAN    AND    WARD. 

Among  the  subjects  over  which  the  surrogate's  court  has  juris- 
diction, is  that  of  the  appointment  of  guardians  for  minors,  the  re- 
moval of  them,  the  direction  and  control  of  their  conduct,  and  the 
settlement  of  their  accounts.  (2  R.  iS.  220,  §  1,  sitb.  7.)  The 
jurisdiction  of  the  surrogate  is  not  exclusive  in  these  matters,  but 
is  nearly  concurrent  with  that  of  the  supreme  court ;  which  latter 
has  succeeded  to  the  jurisdiction  of  the  late  court  of  chancery.  It 
is  supposed  that  the  jurisdiction  of  the  surrogate,  in  this  respect, 
falls  short  of  that  of  the  supreme  court. 

Section  I. 
Of  the  different  kinds  of  guardians;  their  'powers  and  duties. 

There  are  two  kinds  of  guardianship ;  one  by  the  common  law 
and  the  other  by  the  statute.     (2  KenCs  Com.  218.) 

At  common  law  there  were  three  kinds  of  guardians,  namely, 
guardian  by  nature,  guardian  by  nurture,  and  guardian  in  socage. 

Guardian  by  nature  is  the  father,  and  on  his  death,  the  mother. 
It  terminates  when  the  child  arrives  at  the  age  of  twenty-one 
years. 

This  guardianship  extends  only  to  the  person  of  the  child. 
Neither  the  father  or  mother,  as  guardian  by  nature,  has  any  con- 
trol over  the  property,  real  or  personal,  of  the  child.  {Fonda  v. 
Van  Home,  15  Wend.  631.  Genet  v.  Talmadge,  1  John.  Ch.  3. 
Id.  561.  Hyde  v.  Stone,  7  Wend.  354.)  Nor  has  he  any  right, 
as  such  guardian,  to  receive  the  rents  and  profits  of  the  infant's 
land.    {Jackson  v.  Combs,  7  Cowen,  36.     8.  C.  2  Wend.  153.) 


444  GUARDIAN  AND  WARD. 

Under  the  operation  of  our  laws  making  all  the  children  equally 
heirs,  the  guardianship  by  nature  would  seem  to  extend  to  all  the 
children,  and  not  be  confined,  as  at  common  law,  to  the  heir  appa- 
rent, or  eldest  son. 

Guardian  by  nurture  occurs  only  when  the  infant  is  without 
any  other  guardian,  and  belongs  exclusively  to  the  parents,  first  to 
to  the  father  and  then  to  the  mother.  (2  Kent's  Com.  221.) 
Originally  it  applied  only  to  the  younger  children  who  were  not 
heirs  apparent.  With  us  it  has  become  obsolete.  Being  concur- 
rent with  guardianship  by  nature,  there  is  no  reason  for  retaining 
it  as  a  separate  institution.  It  never  gave  the  gua-dian  any  right 
to  control  the  property  of  the  child,  and  it  ended  when  the  child 
arrived  at  the  age  of  fourteen  years,  in  both  males  and  females. 

Guardian  in  socage  had,  at  common  law,  the  custody  of  the  land, 
and  was  entitled  to  the  profits,  for  the  benefit  of  the  heirs.  He 
might  lease  the  land,  avow  or  bring  trespass,  in  his  own  name. 
This  guardianship  ceased  when  the  infant  arrived  at  the  age  of 
fourteen  years,  unless  no  other  guardian  was  appointed,  when  it 
continued  until  the  infant  arrived  at  mature  age.  {Byrne  v.  Van 
Hoeseti,  5  John.  66.  Field  v.  Schieffelin,  7  John.  Ch.  150. 
Holmes  v.  Seeley,  17  Wend.  75.)  On  the  death  of  the  father, 
the  mother  succeeded  as  such  guardian,  and  could,  in  that  charac- 
ter, enter  on  the  lands  of  the  heir.  {Jackson  v.  De  Walts, 
7  John.  157.) 

Under  the  operation  of  our  laws  of  descent,  which  allow  both 
the  father  and  mother,  in  certain  contingencies,  to  inherit  from  the 
child,  this  species  of  guardianship  has  disappeared.  At  common 
law,  this  guardianship  belonged  only  to  such  blood  relation  of  the 
infant  as  could  not  by  possibility  inherit  from  him.  Such  case 
can  rarely  occur. 

The  revised  statutes,  however,  have  provided  a  substitute  for 
this  guardianship.  Thus,  by  the  act  concerning  tenures,  (1  R.  S. 
718,  §  5,)  it  is  enacted,  that  where  an  estate  in  lands  shall  become 
vested  in  an  infant,  the  guardianship  of  such  infant,  with  the  rights, 
powers  and  duties  of  a  guardian  in  socage,  shall  belong,  1.  To 
the  father  of  the  infant :  2.  If  there  be  no  father,  to  the  mother : 
3.  If  there  be  no  father  or  mother,  to  the  nearest  and  eldest  rela- 


TESTAMENTARY  GUARDIAN.  445 

tive  of  full  age,  not  being  under  any  legal  incapacity  ;  and  as  be- 
tween relatives  of  the  same  degree  of  consanguinity,  males  shall 
be  preferred  to  females.  To  every  such  guardian,  all  statutory 
provisions  that  are  or  shall  be  in  force,  relative  to  guardians  in 
socage,  shall  be  deemed  to  apply.  The  rights  and  authority  of 
every  such  guardian  shall  be  superseded  in  all  cases  where  a  tes- 
tamentary or  other  guardian  shall  have  been  appointed  under  the 
provisions  of  the  third  title  of  the  eighth  chapter  of  part  second  of 
the  revised  statutes. 

This  species  of  guardianship  extends  not  only  to  the  person,  and 
all  the  real  estate,  even  to  hereditaments,  which  do  not  lie  in  tenure 
but  to  the  personal  estate  also.  The  title,  however,  to  this  guar- 
dianship, cannot  accrue  unless  the  infant  be  seised  of  lands. 

In  addition  to  the  foregoing,  there  are  the  following  species  of 
guardianship :  1.  Testamentary  guardians.  These  are  founded 
on  the  deed  or  last  will  of  the  father,  and  they  supersede  the  claims 
of  any  other  guardian,  and  extend  to  the  person  and  real  and  per- 
sonal estate  of  the  child,  and  continue  until  the  child  arrives  at 
the  age  of  twenty-one  years,  if  so  expressed  in  the  grant.  This 
power,  it  is  said,  was  first  given  by  the  statute  of  12  Charles  2d, 
and  it  has  been  extensively  adopted  in  this  country.  The  same 
power  is  given,  and  its  effects  are  declared,  by  the  New  York  re- 
vised statutes.  (2d  vol.  150.)  Thus,  it  is  enacted  that  every  father, 
whether  of  full  age  or  a  minor,  of  a  child  likely  to  be  born,  or  of  a 
living  child,  under  the  age  of  twenty-one  years,  and  unmarried, 
may,  by  his  deed  or  last  will,  duly  executed,  dispose  of  the  custody 
and  tuition  of  such  child,  during  its  minority,  or  for  any  less  time, 
to  any  person  or  persons  in  possession  or  remainder.  Every  such 
disposition,  from  the  time  it  takes  effect,  vests  in  the  person  or 
persons,  to  whom  it  is  made,  all  the  rights  and  powers,  and  subjects 
him  or  them  to  all  the  duties  and  obligations  of  a  guardian  of  such 
minor,  and  is  valid  and  effectual  against  every  other  person,  claim- 
ing the  custody  or  tuition  of  such  minor,  as  guardian  in  socage,  or 
otherwise.  The  guardian  so  appointed  has  power,  by  law,  to  take 
the  custody  and  tuition  of  the  said  minor,  to  maintain  all  proper 
actions  for  the  wrongful  taking  or  detention  of  the  minor,  and  to 
recover  damages  in  such  actions  for  the  benefit  of  his  ward.     It  is 


446  GUARDIAN  AND  WARD. 

his  duty  also  to  take  the  custody  and  management  of  the  personal 
estate  of  the  minor,  and  the  profits  of  his  real  estate,  during  the 
time  for  which  such  disposition  shall  be  made,  and  he  may  bring  such 
actions,  in  relation  thereto,  as  a  guardian  in  socage  might  by  law. 

The  father  and  not  the  mother  has  the  power  of  appointing  a 
guardian,  {Matter  of  Pierce,  12  How.  532  ;)  but  even  he  does  not 
possess  the  power,  if  the  child,  though  a  minor,  be  married.  The 
guardianship  of  his  infant  wife  belongs  to  the  husband.  {Kettletas 
v.  Gardner,  1  Paige,  488.)  A  female  ward  of  the  court  is  not 
discharged,  upon  her  marriage,  from  the  protection  of  the  court, 
without  a  special  order.    {Matter  of  Whittaker,  4  J.  Ch.  R.  378.) 

The  father  may  limit  the  appointment  for  a  less  time  than  dur- 
ing minority  ;  he  may  confer  the  guardianship  on  one  or  more  per- 
sons ;  and,  of  course,  he  may  grant  the  guardianship  of  the  person 
to  one  person,  and  of  the  estate  to  another. 

2.  Chancery  guardians,  or  such  as  are  now  appointed  by  the 
supreme  court,  under  the  power  formerly  possessed  by  the  court  of 
chancery,  are  either  general  or  special.  The  chancery  guardian 
continues  until  the  majority  of  the  infant,  and  is  not  controled  by 
the  election  of  the  infant  when  he  arrives  at  the  age  of  fourteen. 
{Matter  of  Nicoll,  1  J.  Ch.  R.  25.)  The  court  of  chancery  has  a 
general  control  over  all  guardians  by  whomsoever  appointed ;  and 
the  authority  to  call  them  to  account,  and  of  displacing  them. 
{Matter  of  Andrews,  1  J.  Ch.  R.  99.  Ex  parte  Crumb,  2  id.  439.) 
The  supreme  court,  by  virtue  of  its  jurisdiction  as  a  court  of  equity 
over  persons  laboring  under  disability,  can  take  the  custody  of  an 
infant  from  the  control  of  its  father,  and  give  it  to  the  mother. 
(  The  People  v.  Mercein,  8  Paige,  47.  S.  C.  25  Wend.  64.  The 
People  v.  Chegaray,  18  Wend.  637.)  As  this  court  can  take  the 
custody  of  an  infant  from  the  parents,  so  it  can  appoint  a  guardian 
for  an  infant,  during  the  lifetime  of  the  father  or  mother,  and  with- 
out their  consent. 

3.  Guardians  appointed  by  the  surrogates  of  the  different  counties 
of  the  state.  According  to  Swinburne,  page  216,  Reeves  Dom. 
Rel.  317,  the  spiritual  court  originally  possessed  the  power  of  ap- 
pointing guardians  for  minors  in  relation  to  the  personal  estate. 
This  jurisdiction  was  not  conferred  on  the  surrogates'  courts  in  this 


APPOINTMENT  OF  GUARDIAN.  447 

state  until  the  year  1802,  (25  Sess.  Laws,  ch.  110,)  and  it  then 
extended  only  to  the  power  of  appointment,  and  conferred  no 
authority  over  them  as  trustees  ;  or  jurisdiction  to  remove  them,  or 
call  them  to  account.  (In  the  matter  of  Andrews,  1  J.  Ch.  R.  99. 
Ex  parte  Crumb,  2  id.  439.) 

By  the  existing  statute  it  is  enacted  that  the  surrogate,  when 
no  guardian  shall  have  been  appointed  by  the  father  of  the  minor, 
by  deed  or  will,  shall  have  the  same  power  to  allow  and  appoint 
guardians  for  minors  whose  place  of  residence  is  in  the  county  of 
the  surrogate,  as  is  possessed  by  the  supreme  court.  (2  R.  S. 
151,  §  6.  3  R.  IS.  244,  5th  ed.  as  altered.)  This  is  to  be  under- 
stood with  some  qualification.  The  surrogate  cannot  appoint  a 
guardian  for  an  infant  over  fourteen  years  of  age,  against  the  con- 
sent of  the  infant.  He  can,  in  such  a  case,  merely  allow  a 
guardian  nominated  by  the  infant.  {Sherman  v.  Ballon,  8  Cotoen, 
304.)  The  appointment  of  a  guardian  by  the  surrogate  for  an  in- 
fant under  fourteen  terminates  at  that  age,  if  the  infant  on  becom- 
ing fourteen,  chooses  a  different  person,  and  his  choice  is  allowed 
by  the  surrogate.  The  present  supreme  court  succeeding  to  the 
jurisdiction  of  the  late  court  of  chancery,  are  not  thus  restricted. 
They  can  appoint  a  guardian  contrary  to  the  nomination  of  the 
infant.  Again,  the  surrogate  cannot  appoint  a  guardian  for  an 
infant  whose  father  is  living.  This  is  fairly  implied,  from  the 
power  to  appoint  being  given  to  the  surrogate  only  on  the  failure 
of  the  father  to  make  a  testamentary  appointment ;  an  event 
which  cannot  be  known  until  his  death.*  (Foster  v.  Mott, 
3  Bradf.  412.) 

*  The  only  reported  case  to  the  contrary  which  has  fallen  under  my  observation, 
is  a  dictum  of  Welles,  J.  in  Clark  v.  Montgomery,  23  Barbour,  472.  In  the  course 
of  his  opinion,  the  learned  judge  says  :  "  It  is  unusual  for  the  surrogate  to  appoint 
a  general  guardian  for  an  infant  having  a  father,  yet  it  may  be,  and  sometimes  is 
done ;  and  then  the  guardian  suceeeds  to  the  rights  and  duties  of  the  father,  sub- 
ject to  the  authority  andjliscretion  of  a  court  of  equity."  It  was  not  the  direct 
point  in  the  case,  nor  does  it  appear  to  have  been  discussed  by  counsel,  or  to  have 
been  passed  upon  by  the  associates  of  the  learned  judge.  No  caso  is  referred  to  as 
authority.  Though  the  dictum  is  entitled  to  great  respect  from  its  source,  it  is 
believed  to  be  incorrect.  It  is  not  denied  that  the  supreme  court,  succeeding  to 
the  authority  of  the  late  court  of  chancery,  has  the  power  to  take  the  guardianship 
of  infants  from  the  parents,  against  their  consent.     But  the  surrogate  has  not  yet 


448  DUTY  OF  GUARDIAN. 

Every  guardian  so  appointed  by  the  surrogate,  possesses  the 
same  power  as  a  testamentary  guardian.  He  may  be  cited  to  ac- 
count before  the  surrogate  ;  and  he  may  be  removed  from  his  trust 
by  the  surrogate  for  incompetency,  or  for  wasting  the  real  or  per- 
sonal estate  of  his  ward,  or  for  any  misconduct  in  relation  to  his 
duties  as  guardian.     (2  R.  S.  152,  §§  14,  15,  16.) 

As  the  same  power  "to  allow  and  appoint  guardians"  is,  by  the 
statute,  conferred  on  the  surrogate  that  is  possessed  by  the  su- 
preme court,  as  successors  of  the  court  of  chancery,  it  would  seem 
that  the  guardianship  of  the  person  may  be  granted  to  one,  and 
that  of  the  estate  to  another  person.  This  was  often  done  by  the 
late  court  of  chancery.  In  such  a  case  the  statute  is  complied 
with,  if  security  be  taken  only  from  the  guardian  of  the  estate,  as 
was  done  in  similar  cases  by  the  court  of  chancery.  (2  Ke?itJs 
Com.  227.)  And  the  surrogate  has,  doubtless,  the  same  jurisdic- 
tion where  the  estate  of  the  infant  is  very  extensive,  to  allow  of 
security  in  a  fair  sum  only,  as  was  done  by  the  court  of  chancery 
in  such  cases.  (In  matter  of  Hedges,  1  ed.  Ch.  R.  57.  In  the 
matter  of  Frits,  2  Paige,  374.)  We  have  seen,  in  a  previous 
chapter,  that  the  surrogate  may,  in  certain  cases,  appoint  the  New 
York  Life  and  Trust  Company  guardian  of  the  estate  of  infants 
without  exacting  security.  In  such  a  case  the  guardian  of  the 
person  will  be  a  different  person,  with  such  power  over  the  estate 
as  the  surrogate  may  give  in  the  letters  of  guardianship ;  and  the 
security  to  be  exacted  from  him  should  be  measured  with  refer- 
ence to  the  estate  of  the  infant  put  under  his  control,  rather  than 
by  the  entire  estate  of  the  infant. 

"With  regard  to  the  duties  as  well  of  a  guardian  in  socage,  as  of 
every  other  guardian,  whether  testamentary  or  appointed,  the  stat- 
ute has  well  summed  them  up,  by  declaring  that  he  shall  safely  keep 
the  things  that  he  may  have  in  his  custody  belonging  to  his  ward, 
and  not  make  or  suffer  any  waste,  sale  or  destruction  of  such 
things  or  of  such  inheritance,  but  shall  keep  up  and  sustain  the 
houses,  gardens  and  other  apurtenances  to  the  lands  of  his  ward, 

been  clothed  with  that  jurisdiction  ;  which  he  must  have,  if  he  can  allow  an  infant 
of  fourteen  to  ignore  the  control  of  his  father,  or  appoint  a  guardian  for  one  still 
younger,  against  the  remonstrances  of  a  living  father. 


DUTIES  OF  GUARDIAN.  449 

by  and  with  the  issues  and  profits  thereof,  and  with  such  other 
moneys  belonging  to  his  ward,  as  shall  be  in  his  hands,  and  shall 
deliver  the  same  to  his  ward,  when  he  comes  to  his  full  age,  in  as 
good  order  and  condition,  at  least,  as  such  guardian  received  the 
same,  inevitable  decay  and  injury  only  excepted  ;  and  he  shall  an- 
swer to  his  ward  for  the  issues  and  profits  of  real  estate  received 
by  him,  by  a  lawful  account.     (2  R.  g.  153,  §  20.) 

The  general  principles  which  regulate  the  rights  and  duties  of 
guardians  form  an  important  part  of  our  equity  jurisprudence. 
They  have  frequently  been  discussed  at  the  bar,  and  expounded 
from  the  bench.  We  have  room  only  to  state  a  few  of  these  prin- 
ciples with  a  reference  to  the  adjudged  cases.  The  guardian  can- 
not trade  with  himself,  on  account  of  his  ward,  nor  buy  or  use  his 
ward's  property  for  his  own  benefit.  All  advantageous  bargains 
which  he  makes  with  the  ward's  funds,  enure  to  the  benefit  of  the 
ward  at  his  election.  He  cannot  convert  the  personal  property  of 
his  ward  into  real  estate,  or  buy  land  with  the  ward's  money.  If 
he  does  so,  his  ward,  when  he  comes  of  age,  will  be  entitled,  at  his 
election,  to  take  the  land  or  the  money,  with  interest.  (  White  v. 
Parker,  8  Barb.  S.  C.  R.  48.     Reeve's  Dom.  Rel.  325  et  seq.) 

The  policy  of  the  doctrine  that  the  guardian  cannot,  without  the 
intervention  of  a  court  of  equity,  change  the  property  of  the  ward, 
from  real  to  personal,  and  vice  versa,  is  ably  questioned  by  the 
late  Chief  Justice  Reeve,  {Reeve's  Dom.  Rel.  334;)  and  he  shows 
that  some  of  the  reasons  on  which  it  is  founded  do  not  exist  in 
this  country.  It  is,  however,  a  well  settled  principle  in  our  juris- 
prudence. ( White  v.  Parker,  supra.  Genet  v.  Tahnadge, 
1  J.  Ch.  R.  561.  Field  v.  Schieffelin,  7  id.  154.)  The  statute 
{first  enacted  in  1814,  ch.  108,)  authorizing  the  chancellor,  on  a 
proper  application,  to  direct  the  sale  of  the  whole  or  a  part  of  the 
real  estate  of  infants  for  their  maintenance  and  education,  and 
which  has  since  been  enlarged  and  regulated,  (2  R.  S.  194. 
3  id.  274,  5th  ed.)  is  founded  on  the  theory,  that  without  legisla- 
tive interference  the  guardian  could  not,  at  common  law,  sell  the 
lands  of  his  ward.  It  is  well  known,  that  prior  to  1814,  there 
were  annually  numerous  applications  to  the  legislature  on  this 
subject,  and  special  acts  were  occasionally  enacted,  authorizing  the 
sale  of  the  real  estates  of  infants.  The  general  law  has  superseded 
57 


450  DUTIES  OF  GUARDIAN. 

the  necessity  of  such  special  legislation ;  and  that  was  in  part  its 
object. 

Although  plausible  reasons  may  be  given  for  extending  to  the 
guardian  the  same  power  of  disposition  over  the  real  as  the  per- 
sonal estate  of  his  ward,  yet  it  is  for  the  legislature  and  not  the 
courts  to  make  the  innovation.  The  change  of  the  infant's  prop- 
erty from  real  to  personal,  and  vice  versa,  interferes  with  his 
power  to  dispose  of  it  by  will.  By  the  existing  law,  males  at 
eighteen  and  females  at  sixteen  may  bequeath  personal  property; 
but  neither  can  devise  real  estate,  till  they  attain  the  age  of 
twenty-one  years. 

A  guardian  may,  however,  sell  the  personal  property  of  his 
ward  for  the  purpose  of  the  trust,  without  the  order  of  the  court ; 
and  a  bona  fide  purchaser  is  not  answerable  for  the  application 
of  the  money     [Field  v.  Schieffelin,  7  J.  Ch.  R.  154.) 

But  this  right  should  be  exercised  for  the  benefit  of  the  infant. 
He  may  lease  the  ward's  land  during  his  minority,  and  no  longer. 
{Pond  v.  Curtis,  7  Wend.  45.)  He  should  keep  the  moneys  of 
his  ward  productive,  and  apply  the  interest  only,  if  sufficient,  to 
his  maintenance  and  the  proper  expenditures  of  the  trust.  (De 
Peyster  v.  Clarkson,  2  Wend.  77.  Hopkins,  424.)  He  should 
not  support  his  ward  in  idleness,  when  he  is  capable  of  earning  his 
own  living.  {Clark  v.  Clark,  8  Paige,  153.)  But  the  means 
of  support  furnished  him  while  he  is  obtaining  his  education,  and 
preparing  himself  for  future  usefulness,  are  a  proper  allowance  to 
the  guardian  as  necessaries.     {Id.) 

The  right  of  the  guardian  to  dispose  of  the  personal  property  of 
the  ward  is  essential  to  the  due  execution  of  the  trust.  Without 
this  power  he  could  not  make  unproductive  property  yield  a 
revenue.  It  is  sometimes  necessary  to  call  in  outstanding  debts 
and  to  reinvest  them.  In  this  as  well  as  in  the  sale  of  the  per- 
sonal property  of  the  ward,  due  regard  should  be  had  to  the  char- 
acter of  the  estate,  the  social  position  of  the  ward,  his  age,  and  the 
nature  and  condition  of  his  real  estate,  and  his  probable  future  oc- 
cupation. It  is  not  usual  to  sell  family  pictures,  plate,  watches, 
ornaments,  &c.,but  to  keep  them  (as  they  are  not  perishable  in  their 
nature)  as  memorials  of  their  former  proprietors.  Should  the 
ward  be  an  heir  to  a  well  stocked  farm  and  nearly  of  age,  the 


COMMISSIONS  OF  GUARDIANS.  451 

guardian  would  be  justified  in  not  selling  this  stock.     {Reeve's 
Dom.  Rel  326.) 

If  the  guardian  omits  to  keep  the  money  of  his  ward  invested, 
or  mixes  it  with  his  own,  he  is  chargeable  with  simple  interest,  on 
the  funds  in  his  hands  uninvested ;  and  in  gross  cases  of  delin- 
quency, with  compound  interest.  (De  Peyster  v.  Clarkson, 
supra.) 

Most  of  the  charges  against  executors  and  administrators  are 
applicable  to  guardians  ;  as  both,  indeed,  act  in  a  fiduciary  capa- 
city. A  guardian  is  allowed  his  reasonable  expenses,  and  the 
same  rate  of  compensation  for  his  services,  as  is  provided  by  law 
for  executors  and  administrators.  (2  R.  >S.  153,  §  22.)  He  is 
not  entitled  to  commissions  on  investing,  or  receiving  and  rein- 
vesting the  funds  of  his  ward,  for  the  purpose  of  raising  an  in- 
come ;  but  only  upon  the  interest  received  and  paid  out  by  him. 
He  is  allowed  half  commissions  for  receiving  and  half  for  paying 
out  the  trust  money  ;  and  when  he  only  receives,  or  only  pays  out, 
he  cannot  charge  for  both.     (Matter  of  Kellogg,  7  Paige,  265.) 

The  guardian  has  power  to  receive  a  legacy  bequeathed  to  his 
ward,  if  above  fifty  dollars,  under  the  direction  of  the  surrogate, 
on  giving  such  security  as  shall  be  required.  His  discharge  of 
the  same,  on  its  being  paid  to  him,  in  that  character,  will  be  a 
good  voucher  to  the  executor.  He  may,  indeed,  receive  any 
money  due  to  his  ward,  including  legacies  of  any  amount.  He 
may  submit  to  arbitration  in  behalf  of  his  ward.  (  Weed  v.  Ellis, 
3  Gained  Rep.  253.)  He  may  in  some  cases  purchase  real  estate 
at  public  sale  for  the  benefit  of  his  ward,  (2  R.  S.  105,  §  27 ;)  as 
where  land  is  sold  under  an  order  of  the  surrogate;  but  he  cannot 
in  such  cases  purchase  for  his  own  benefit. 

A  guardian  has  a  power  coupled  with  an  interest,  and,  there- 
fore, if  three  persons  be  appointed  guardians,  and  one  dies,  the 
guardianship  survives.  {Eyre  v.  Countess  of  Shaftsbury,  2  P. 
Wms.  103.     The  People  v.  Byron,  3  J.  C.  53.) 

When  there  are  several  joint  guardians,  the  trust  is  joint  and 
several.  They  are  jointly  responsible  for  joint  acts,  and  each  is 
solely  responsible  for  his  own  acts  and  defaults,  in  which  the  other 
did  not  participate.     When  one  of  several  guardians  acts  alone, 


452  APPOINTMENT  OF  GUARDIANS. 

and  misapplies  the  property  of  his  ward,  or  fails  in  any  thing 
■which  is  his  several  duty,  he  alone  is  responsible  for  his  own  mis- 
conduct.    (Kirby  v.  Turner,  Hopkins,  330,  per  Sanford,  Ch.) 

The  surrogate  has  no  jurisdiction  over  a  guardian  appointed  by 
the  supreme  court,  or  a  testamentary  guardian.  He  has  no  power 
in  this  respect,  except  what  is  conferred  by  the  statute,  which  is 
exclusively  confined  to  guardians  appointed  by  himself.  (Matter 
of  Dyer,  5  Paige,  534.) 

Section  II. 
Of  the  appointment  of  guardian,  and  in  what  way  it  is  made. 

The  practice  of  the  late  court  of  chancery  and  present  supreme 
court,  in  appointing  guardians,  does  not  fall  within  the  scope  of 
this  treatise. 

We  shall  speak  of  testamentary  guardians,  and  guardians  ap- 
pointed by  the  surrogate. 

1.  Of  testamentary  guardians.  Before  the  statute  12  Charles 
2,  c.  24,  a  father  was  permitted,  by  the  general  custom  within  the 
province  of  York,  to  commit,  by  his  last  will  and  testament, 
the  tuition  of  his  child  and  the  custody  of  his  person,  for  a  time  ; 
which  testament  and  assignation  was  to  be  confirmed  by  the  ordi- 
nary, who  also  was  to  provide  for  the  execution  of  the  same  testa- 
ment. If  the  father  died  without  making  the  appointment,  the 
power  devolved  on  the  mother,  who  was  authorized,  by  her  last 
will  and  testament,  to  appoint  a  tutor  for  her  minor  children  ;  and 
if  no  tutor  be  assigned  by  either  of  the  parents,  a  stranger,  if  he 
made  the  orphan  his  executor,  and  gave  him  his  goods,  might 
assign  a  tutor  for  him,  with  respect  to  such  goods  ;  which  tutor  was 
to  be  confirmed  by  the  ordinary.  Sicinb.  210.  2  Bum's  E.  L. 
536,  quarto  ed.) 

The  statute  12  Charles  2,  which  was  substantially  re-enacted 
in  this  state,  controled  in  some  respects  the  custom  of  York,  and 
made  the  rule  universal.  None  but  the  father  can  appoint  such 
guardian.  Nor  does  the  making  the  orphan  executor,  or  legatee, 
or  both,  confer  the  authority  to  make  such  guardian,  on  a  stranger 
or  a  relative.     In  this  state  it  has  been  held  that  even  the  grand- 


APPOINTMENT  OF  GUARDIANS.  453 

father  has  no  right,  under  the  statute,  to  appoint  by  will  a  guardian 
for  his  grandchild.     {Fullerton  v.  Jackson,  5  J.  Ch.  R.  278.) 

No  particular  form  of  words  is  prescribed  to  make  the  appoint- 
ment valid.  It  is  enough  if  the  meaning  appears.  Wherefore,  if 
the  testator  say,  I  commit  my  children  to  the  power  of  such  an 
one  ;  or  I  leave  them  in  his  hands  ;  it  is  in  effect  as  if  the  testator 
had  said,  I  make  him  tutor  to  my  children.  So  it  is  if  he  say,  I 
leave  them  to  his  government,  regimen,  administration,  or  the  like. 
(Swinb.  216.  2  Bum's  E.  L.  589,  quarto  ed.  Corrigan  v. 
Kieman,  1  Bradf.  208.) 

An  appointment  by  deed  or  by  will  is  in  effect  the  same  thing, 
as  either  instrument  is  ambulatory  and  revocable  till  the  death  of 
the  party  making  it.  In  a  case  where  the  father  gave  the  guar- 
dianship of  the  infant  to  one  by  deed  and  to  another  by  will,  it 
was  decreed  that  the  will  was  a  revocation  of  the  deed. 

The  statute  allows  the  father,  though  a  minor,  to  make  a  testa- 
mentary guardian.  In  analogy  to  the  age  at  which  males  are 
capable  of  making  a  will  of  personal  property,  it  is  presumed  that 
he  must  be  of  the  age  of  eighteen  years  or  upwards  in  order  to 
make  a  valid  testamentary  appointment  of  a  guardian.  It  is  usual 
to  have  the  will  making  the  appointment  admitted  to  probate, 
though  the  appointment  derives  its  force  from  the  will  or  deed, 
rather  than  from  the  probate. 

The  surrogated  court,  we  have  seen,  has  no  jurisdiction  over 
testamentary  guardians,  either  to  call  them  to  account,  remove 
them,  or  direct  them  in  their  proceedings.  The  subject  is  no 
further  material  to  that  officer,  than  to  know,  that  if  there  be  a 
valid  testamentary  appointment  of  a  guardian,  made  by  the  father, 
the  surrogate  is  ousted  of  jurisdiction.  {Matter  of  Dyer,  5  Paige, 
534.) 

The  testamentary  guardian  stands  on  the  same  footing  of  other 
trustees,  and  may  be  called  to  account,  directed  in  his  conduct,  or 
removed  from  office  by  the  supreme  court,  in  a  proper  case. 
(  Willard's  Eq.  Juris.,  423.  470.) 

2.  Of  the  appointment  of  guardians  of  the  person  and  estate  by 
the  surrogate.  This  is  a  power,  we  have  seen,  not  existing  at  common 
law,  and  which  has  been  conferred  on  the  surrogate's  court  since 
the  commencement  of  the  present  century.     It  is  not,  like  the 


454  PETITION  FOR  APPOINTMENT. 

power  formerly  enjoyed  by  the  court  of  chancery,  and  now  by  the 
present  supreme  court,  a  general  power,  but  is  limited  to  certain 
specified  cases. 

The  provisions  of  the  statute  are  substantially  as  follows :  If 
the  minor  is  above  the  age  of  fourteen  years,  and  no  guardian  has 
been  appointed  for  him  by  the  deed  or  will  of  his  father,  he  may 
apply,  by  petition,  to  the  surrogate  of  the  county  where  the  resi- 
dence of  the  minor  is,  for  the  appointment  of  such  guardian  as  the 
minor  may  nominate,  subject  to  the  approval  of  the  surrogate. 
(2  R.  S.  150.)  The  surrogate,  however,  is  not  bound  by  this 
nomination,  and  may,  if  the  choice  is  an  injudicious  one,  refuse  to 
approve  it.  Under  the  former  statute,  (1  R.  L.  454.)  which  was 
the  same  in  this  respect  as  the  present,  the  supreme  court  held 
that  the  surrogate  had  no  other  power  to  appoint  a  guardian  for  a 
minor  over  fourteen  years  of  age,  than  to  allow  such  guardian  as 
might  be  chosen  by  the  minor.  (Shei'man  v.  Ballon,  8  Coweji, 
304.)  If  the  minor,  therefore,  did  not  choose  a  guardian,  the  sur- 
rogate could  appoint  none. 

The  proceedings  to  appoint  a  guardian  are  commenced  by  a  pe- 
tition, in  writing,  addressed  to  the  court ;  and  it  should  set  forth 
enough  to  give  jurisdiction,  and  such  other  facts  as  are  important 
to  guide  the  discretion  of  the  court.  It  should,  therefore,  set  forth 
the  name,  age  and  place  of  abode  of  the  minor,  the  death  of  his 
father,  without  having  appointed  any  guardian  by  deed  or  will,  the 
amount  of  his  personal  property,  and  the  value  of  the  rents  and 
profits  of  his  real  estate,  and  the  name,  age  and  addition  of  the  per- 
son nominated  by  the  minor  for  his  guardian.  It  should  be  sub- 
scribed by  the  minor,  and  his  signature,  if  not  made  in  open  court, 
should  be  verified  by  an  affidavit ;  and  the  truth  of  the  other  facts, 
set  forth  in  the  petition,  should  be  attested  in  like  manner.  The 
surrogate  is  required,  in  all  cases,  to  inquire  into  the  circumstances 
of  the  minor  and  ascertain  the  amount  of  his  personal  property,  and 
the  value  of  the  rents  and  profits  of  his  real  estate :  and  for  that  pur- 
pose he  may  compel  any  person  to  appear  before  him  and  testify 
in  relation  thereto.  (2  R.  S.  151,  §  6.  Foster  v.  Mott,  3  Bradf. 
409.  Brown  v.  Lynch,  2  id.  214.  And  see  App.  109,  as  to  form 
of  petition.)  It  is  not  usually  necessary  to  resort  to  testimony 
dehors  the  petition,  unless  there  be  a  contest  about  the  guardianship. 


ORDER— BOND.  455 

The  petition  should  be  accompanied  with  the  written  consent 
of  the  person  nominated  as  guardian,  to  act  in  that  capacity,  if  ap- 
pointed. The  execution  of  this  instrument  should  be  regularly 
verified  by  affidavit.  The  surrogate  should  also  inquire  into  the 
suitableness  of  the  person  proposed  as  guardian,  as  well  as  into 
the  circumstances  of  the  minor.  The  testimony  should  be  reduced 
to  writing  and  subscribed  by  the  witnesses.     {Bennett  v.  Byrne, 

2  Barb.  Ch.  216.     App.  110,  111.) 

On  filing  the  petition  and  other  papers,  the  surrogate,  if  he  in- 
tends to  grant  the  application,  should  enter  an  order  in  the  minute 
book  directing  the  appointment  of  the  person  nominated  as  such 
guardian,  on  his  executing  a  bond  to  the  minor  with  sufficient 
security  to  be  approved  of  by  the  surrogate,  in  a  penalty  double  the 
amount  of  the  personal  estate,  and  of  the  value  of  the  rents  and 
profits  of  the  real  estate,  conditioned  that  such  person  will  faith- 
fully, in  all  things,  discharge  the  duty  of  a  guardian  to  such  minor, 
according  to  law,  and  that  he  will  render  a  true  and  just  account 
of  all  moneys  and  property  received  by  him,  and  of  the  application 
thereof,  and  of  his  guardianship,  in  all  respects,  to  any  court  having 
cognizance  thereof,  when  thereunto  required.  The  statute  has  not 
directed  the  number  of  sureties  to  be  required.  That  matter  is 
left  to  the  sound  discretion  of  the  surrogate.  The  amount  of  prop- 
erty, the  age  of  the  minor  and  the  character  of  the  parties,  are  all 
proper  to  be  considered  in  forming  a  judgment  on  this  subject. 

If  there  are  more  minors  than  one,  uniting  in  the  same  application, 
a  bond  should  be  taken  to  each,  separately ;  and  they  should  be 
proved  or  acknowledged  before  a  proper  officer,  as  is  required  of 
deeds  preparatory  to  recording  them.     (L.  of  1838,  ch.  271,  §  9. 

3  R.  S.  690,  5th  ed.  L.  of  1851,  ch.  175,  §  3.)  A  bond  taken 
to  all  the  minors  would  doubtless  be  available  to  each  ;  but  the  en- 
forcing it  might  sometimes  be  attended  with  inconvenience.  In 
like  manner,  where  several  persons  are  appointed  guardians  for 
one  minor,  each  guardian  may  give  a  separate  bond,  or  they  may 
all  join  in  the  same  bond,  jointly  and  severally  to  their  ward. 
(Kirby  v.  Turner,  1  Hopkins,  309.     App.  113.) 

On  producing  the  bond,  duly  executed,  to  the  surrogate,  a  further 
order  should  be  entered  in  the  minutes,  approving  of  the  bond  and 
directing  the  appointment  to  issue.     The  appointment  should  run 


456  GUARDIAN'S  ANNUAL  ACCOUNT. 

in  the  name  of  the  people  and  be  tested  in  the  name  of  the  officer  by 
■whom  it  is  issued,  under  his  seal  of  office.  It  is,  moreover,  required 
to  be  recorded  in  a  book  to  be  provided  for  that  purpose.  ( App.  115.) 
Since  the  law  of  1837,  ch.  460,  (3  R.  S.  247,  5th  ed.)  every 
general  guardian  appointed  by  the  surrogate  is  required  annually, 
after  his  appointment,  so  long  as  any  part  of  the  estate  or  the 
income  or  proceeds  thereof  remain  in  his  hands,  or  under  his  con- 
trol, to  file  in  the  office  of  the  surrogate  appointing  him,  an  inven- 
tory and  account,  under  oath,  of  his  guardianship,  and  of  the  amount 
of  property  received  by  him  and  remaining  in  his  hands,  or 
invested  by  him,  and  the  manner  and  nature  of  such  investments, 
and  his  receipts  and  expenditures  in  form  of  debtor  and  creditor. 
By  subsequent  sections  of  the  same  act,  the  surrogate  is  required 
to  annex  to  and  deliver,  with  the  appointment  of  a  general  guar- 
dian made  by  him,  a  copy  of  the  preceding  section,  and  to  file  in 
his  office  all  accounts  and  inventories  before  mentioned ;  and  in 
the  month  of  February,  in  each  year,  he  is  to  examine  all  such 
accounts  and  inventories  as  shall  have  been  filed  in  his  office  for 
the  preceding  year.  If  on  such  examination  he  shall  be  satisfied 
in  any  case  that  the  interest  of  the  ward  requires  that  a  more  full 
and  satisfactory  account  should  be  given,  or  that  such  guardian 
should  be  removed,  or  in  case  any  guardian  shall  neglect  to  file 
such  account  and  inventory  for  three  months  after  the  same  should 
have  been  filed,  such  surrogate  shall  proceed  against  such  guar- 
dian in  the  manner  prescribed  in  the  14th  section  of  title  3,  chap- 
ter 8,  of  the  2d  part  of  the  revised  statutes,  and  sections  15,  16, 
17,  18  and  19  of  said  title  shall  extend  to  proceedings  authorized 
by  this  section.  But  the  surrogate  may  discontinue  such  pro- 
ceedings on  such  guardian  filing  in  his  office  an  account  and 
inventory  satisfactory  to  him,  and  on  payment  of  all  costs  which 
may  have  accrued  in  consequence  of  such  neglect.  The  foregoing 
sections  and  the  practice  under  them  "will  be  noticed  in  the  follow- 
ing section  of  this  chapter. 

If  the  infant  is  under  the  age  of  fourteen  years,  any  relative  or 
other  person  in  his  behalf  may  apply  to  the  surrogate  of  the 
county  where  the  infant  resides,  for  the  appointment  of  a  guardian, 


PETITION  WHERE  INFANT  IS  UNDER  FOURTEEN.        457 

until  he  shall  arrive   at  the  age  of  fourteen   years,  and  until 
another  guardian  shall  be  appointed.     (2  R.  S.  151,  §  5.) 

The  application  should  be  by  petition,  in  writing,  setting  forth 
the  names,  ages,  and  residence  of  the  infants,  the  death  of 
their  father,  without  having  appointed  any  guardian  by  deed  or 
will ;  the  probable  value  of  the  personal  property  of  the  infants, 
and  the  rents  and  profits  of  the  real  estate ;  the  names  and  places 
of  abode  of  the  relatives  of  the  infants,  especially  of  those  residing 
in  the  county ;  and  conclude  with  the  prayer  for  the  appointment 
of  some  person  named  in  the  petition,  as  guardian  of  the  infants. 
The  facts  stated  in  the  petition  should  be  verified  by  affidavit.  On 
filing  the  petition  the  surrogate  should  assign  a  day  for  the  hearing  of 
the  matter,  and  cause  such  notice  thereof  to  be  given  to  such  of  the 
relatives  of  the  infants  as  he  shall  direct.  (2  R.  S.  151,  §  5,  as 
amended  by  act  of  1837,  ch.  460,  §  44.  3  R.  S.  243,  244,  5th  ed.) 
An  order  for  the  above  purpose  should  be  entered  in  the  minutes. 
The  consent  of  the  proposed  guardian  should  be  subjoined  to 
the  petition,  unless  the  petitioner  asks  for  his  own  appointment. 

The  notice  should  be  in  writing,  subscribed  by  the  petitioner, 
and  should  specify  the  time  and  place  of  hearing,  the  names  of 
the  infants  for  whom  the  application  is  made,  and  the  name,  place 
of  abode  and  addition  of  the  person  proposed  as  guardian.  On 
receiving  an  affidavit  of  the  regular  service  of  the  notice,  the  sur- 
rogate should  proceed  to  inquire  into  the  circumstances  of  the 
infants,  and  ascertain  the  amount  of  their  personal  property,  and 
the  value  of  the  rents  and  profits  of  their  real  estate.  For  this 
purpose,  as  in  the  former  case,  he  may  compel  any  person  to 
appear  before  him  and  testify  in  relation  thereto.  The  testimony 
should  be  reduced  to  writing.     [App.  116  to  120.] 

In  this  stage  of  the  proceedings  there  are  often  important  ques- 
tions as  to  the  party  entitled  to  be  appointed  guardian  for  the 
infant.  The  former  statute  did  not  require  notice  of  the  applica- 
tion ;  and  hence,  in  some  instances,  persons  not  of  kin,  and 
perhaps  unsuitable  persons  for  such  a  charge,  received  the  appoint- 
ment. The  attention  of  the  chancellor  was  called  to  this  point  in 
1824,  in  the  case  of  Morehouse  v.  Cook,  (Hopkins,  226.)  In  that 
case  the  chancellor  held  that  as  between  an  uncle  and  a  stranger, 
other  things  being  equal,  the  uncle  was  to  be  preferred.  Though 
58 


458  PERSONS  TO  BE  PREFERRED. 

notice  was  not  required  by  the  act  then  in  force,  yet  the  chancellor 
thought  notice  should  be  given  to  the  relatives  in  the  state,  when 
the  application  was  by  a  stranger  to  the  infant.  The  revisers  in 
1 8-30  provided  not  only  for  notice,  but  they  directed  the  order  of 
preference ;  first,  to  the  mother  of  the  minor ;  second,  to  the 
grandfather  on  the  father's  side ;  third,  to  the  grandfather  on  the 
mother's  side  ;  fourth,  to  either  of  the  uncles  on  the  father's  side  ; 
fifth,  to  either  of  the  uncles  on  the  mother's  side  ;  sixth,  to  any 
one  of  the  next  of  kin  to  the  minor  who  would  be  entitled  to  a 
distribution  of  his  personal  estate,  in  case  of  his  death.  This  pro- 
vision was  repealed  soon  after.  As  the  sixth  section  of  the  act 
gave  the  surrogate  the  same  power  to  allow  and  appoint  guardians 
in  the  cases  over  which  he  had  jurisdiction,  as  the  chancellor, 
the  seventh  section  was  superfluous.  It,  however,  contains  an 
unequivocal  implication,  that  no  guardian  can  be  appointed  by  the 
surrogate  in  the  lifetime  of  the  father  of  the  infant.  The  order 
of  preference  is  precisely  that  which  the  court  would  adopt  in  the 
absence  of  a  statutory  requirement,  all  other  things  being  equal. 

In  making  the  selection  of  the  guardian,  the  true  interest  of  the 
infant  is  to  be  consulted,  rather  than  the  wishes  or  interests  of 
those  contending  for  the  guardianship.  The  particular  order  of 
preference  indicated  above  will  afford  a  safe  guide  in  ordinary 
cases ;  but  it  should  not  be  paramount  to  other  qualifications. 
Though  the  surrogate  has  a  discretion  in  this  matter,  it  is  not  an 
arbitrary,  but  a  judicial  discretion,  and  if  erroneously  exercised  it 
may  be  corrected  on  appeal.  (  White  v.  Pomeroy,  7  Barb.  S.  C.  R. 
640.     Bennett  v.  Byrne,  2  Barb.  Ch.  R.  216.) 

The  declared  wishes  of  the  deceased  parents  of  an  infant,  in 
relation  to  the  manner  in  which  he  should  be  brought  up,  and  as 
to  whose  care  he  should  be  committed  during  his  infancy,  are  en- 
titled to  much  weight  in  deciding  upon  the  claim  of  the  different 
relatives  to  the  guardianship  of  the  infant.  (  Under  hill  v.  Dennis, 
9  Paige,  203.) 

After  deciding  in  favor  of  the  application,  an  order  should  be 
entered  in  the  minutes  appointing  the  applicant,  on-entering  into 
the  bond  with  sufficient  sureties.  The  order,  bond  and  appoint- 
ment will  be  the  same  as  on  the  appointment  of  a  guardian  for  a 
minor,  and  which  have  already  been  noticed. 


REMOVAL  OF  GUARDIAN.  459 


Section  III. 

Of  the  removal  of  guardians  by  the  surrogate  ;  accepting  their 
resignation ;  and  of  their  accounting  before  the  surrogate. 

By  the  former  statute  of  this  state,  it  has  been  seen,  that  al- 
though the  surrogate  had  the  power  of  allowing  and  appointing 
guardians,  in  certain  cases,  yet  he  had  no  jurisdiction  over  them 
as  trustees,  or  authority  to  remove  them  for  misconduct,  or  accept 
their  resignation  of  the  trust,  for  any  reason,  however  urgent.  The 
power,  in  all  these  respects,  belonged  exclusively  to  the  court  of 
chancery.  [Matter  of  Andrews,  1  J.  Ch.  R.  99.  Ex  parte 
Crumb,  2  id.  439.     Disbrow  v.  Henshaw,  8  Coiven,  349.) 

If  it  was  safe  to  entrust  the  power  of  appointment  of  guardians 
for  infants  to  the  surrogates  of  the  different  counties,  under  the 
limitations  contained  in  the  act,  experience  soon  taught  us  that 
that  there  could  be  no  danger  in  conferring  upon  the  same  officer 
the  power  of  removal,  of  accepting  a  resignation  of  the  trust,  and 
of  compelling  and  settling  the  accounts  of  the  guardianship. 

Accordingly,  by  the  revised  statutes  of  1830,  the  surrogate  by 
whom  any  guardian  was  appointed  was  empowered  to  remove  him 
from  his  trust,  on  the  application  of  any  ward,  or  of  any  relative  in 
his  behalf,  or  of  the  surety  of  the  guardian,  for  the  following  causes  : 
1.  For  the  incompetency  of  such  guardian :  2.  His  wasting  the 
real  or  personal  estate  of  his  ward  :  or  3.  Any  misconduct  of  the 
guardian  in  relation  to  his  duties  as  such.  (2  R.  S.  152,  §  14.) 
By  another  provision  of  the  revised  statutes,  it  was  enacted  that 
a  person  sentenced  to  imprisonment  for  life  was  deemed  to  be 
civilly  dead ;  and  a  sentence  to  the  state  prison  for  a  term  of 
years,  worked  a  forfeiture  of  all  public  offices  and  all  private  trusts, 
authority  or  power  during  the  term  of  such  imprisonment.  (2  R.  S. 
701,  §§  19,  20.)  It  would,  doubtless,  also  be  evidence  of  such  mis- 
conduct, as  to  justify  his  entire  removal  from  the  office. 

It  was  found  that  the  revised  statutes  did  not  cover  the  whole 
ground  ;  and  hence  the  statute  of  1837,  ch.  460,  contained  suitable 
provisions :  1.  for  the  removal  of  a  guardian,  when  his  sureties  have 
become  insolvent,  and  have  removed  or  are  about  to  remove  from 


460        •  REMOVAL  OF  GUARDIANS. 

the  state,  or  from  any  cause  they  have  become  insufficient,  and  the 
guardian  neglects,  when  required,  to  give  further  sureties :  and  2.  for 
granting  liberty  to  the  guardian  to  resign  his  trust.  {Laws  of 
1837,  ch.  460,  §§  46,  51.     3  R.  S.  246,  5th  ed.) 

The  proceedings  for  the  removal  of  the  guardian  are  the  same  in 
all  cases.  A  petition  should  be  presented  to  the  surrogate,  setting 
forth  the  facts  on  which  the  application  is  founded,  duly  verified 
by  affidavit,  and  asking  the  aid  of  the  surrogate  in  the  premises. 
On  filing  it,  an  order  should  be  entered  in  the  minute  book,  direct- 
ing a  citation  to  issue  to  the  guardian  to  appear  before  the  surro- 
gate at  a  certain  day  and  place,  to  show  cause  why  he  should  not 
be  removed  from  his  guardianship.     (2  R.  S.  152.) 

This  citation  must  have  at  least  fourteen  days  between  the  test 
and  return ;  and  must  be  served  personally  on  the  guardian  to 
whom  it  is  directed,  at  least  fourteen  days  before  the  return  there- 
of. If  the  guardian  has  absconded  or  concealed  himself  so  that  he 
cannot  be  personally  served,  it  may  be  served  by  leaving  a  copy 
thereof  at  the  last  place  of  residence  of  the  guardian.     {Id.) 

On  the  return  of  the  citation,  and  after  receiving  evidence  of  its 
due  service  or  publication,  as  the  case  may  be,  the  surrogate 
should  proceed  to  inquire  into  the  alleged  complaint.  For  this 
purpose  supcenas  may  be  issued  to  compel  the  attendance  of  wit- 
nesses ;  and  the  hearing  may  be  adjourned  from  time  to  time. 
If  the  surrogate  is  satisfied  from  such  examination  of  the  incom- 
petency or  misconduct  of  the  guardian,  he  is  authorized  to  remove 
him  from  his  trust,  by  an  order  to  be  duly  entered  in  his  minutes. 
A  revocation  of  the  original  appointment,  under  the  seal  of  the 
court,  should  be  issued  and  served  on  the  guardian.  The  revoca- 
tion should  run  in  the  name  of  the  people,  and  be  tested  in  the 
name  of  the  officer  by  whom  it  is  issued.  It  should  be  recorded 
in  the  same  book  with  the  original  appointment.     (2  R.  S.  222.) 

The  general  causes  for  which  a  removal  may  be  made,  are  suf- 
ficiently detailed  in  the  statute.  Fixed  habits  of  intemperance 
have  been  held  to  be  a  sufficient  reason  for  the  removal.  {Kettle- 
tas  v.  Gardner,  1  Paige,  488.)  Though  the  surrogate  has  no 
jurisdiction  over  a  chancery  guardian,  the  chancellor  formerly,  and 
now  the  supreme  court,  have  jurisdiction  over  a  guardian  appointed 


REMOVAL  OF  GUARDIANS.  461 

by  the  surrogate  to  remove  him,  accept  his  resignation,  or  compel 
him  to  account.     {Matter  of  Dyer,  5  Paige,  534.), 

Whenever  the  surrogate  shall  have  issued  a  citation  to  a  guar- 
dian requiring  him  to  show  cause  why  he  should  not  be  removed 
from  office,  he  is  empowered  to  enter  an  order  enjoining  such 
guardian  from  further  acting  in  the  premises,  until  the  matter  in 
controversy  shall  be  disposed  of.  (Laivs  of  1837,  ch.  460,  §  61.) 
The  proceedings  in  obtaining  an  injunction  order  are  similar  to 
those  in  analogous  cases  in  the  supreme  court.  The  petition 
should  state  facts  enough  to  authorize  it,  and  they  should  be  sworn 
to  by  the  applicant  for  the  order,  or  by  some  other  person  having 
the  requisite  knowledge,  and  the  petition  should  pray  for  such  or- 
der. (See  Willard's  Eq.  Juris,  ch.  6,  Injunction,  p-  341  et  seq.) 
An  injunction  should  be  granted  only  where  the  rights  sought  to 
be  protected  are  clear,  or  at  least  free  from  reasonable  doubt. 
(Stiowden  v.  Noah,  Hopkins,  347.)  It  should  be  issued  only 
where  the  injury  is  pressing  and  delay  dangerous.  (New  York 
P.  and  D.  Establishment  v.  Fitch,  1  Paige,  97.) 

It  remains,  under  this  head,  to  consider  the  practice  on  accept- 
ing the  resignation  by  the  guardian  of  his  trust.  The  application 
for  this  purpose  must  be  made  by  the  guardian.  The  causes  which 
will  justify  a  guardian  in  resigning  his  trust  must  be  such  as  to 
satisfy  the  surrogate  that  the  interest  of  the  ward  will  not  suffer 
by  the  change,  and  that  the  resignation  proceeds  from  good  and 
proper  motives  of  the  guardian.  Thus,  should  the  guardian  be 
about  to  remove  out  of  the  state,  or  be  engaged  in  business  which 
renders  his  discharge  of  the  duties  of  the  office  impracticable,  or 
should  his  health  or  capacity  for  business  become  seriously  im- 
paired ;  these  and  perhaps  various  other  causes  may  be  a  good 
ground  for  accepting  his  resignation. 

Before  this  resignation  can  be  accepted,  the  surrogate  is  re- 
quired to  issue  a  citation  to  the  ward,  requiring  him  to  show  cause, 
at  a  time  and  place  therein  to  be  appointed,  why  the  guardian  should 
not  be  permitted  to  resign  his  trust.  The  citation  must  be  served 
on  the  ward,  by  delivering  him  a  copy,  at  least  ten  days  before  the 
return  day.  Notice  of  the  proceedings  should  also  be  given  to  the 
next  of  kin  of  the  ward,  if  there  be  any,  of  the  age  of  discretion,  in 


462  RESIGNATION  OF  GUARDIANS. 

the  county  of  the  surrogate.  (L.  o/1837,  ch.  460,  §  52.  3  R.  8. 
247,  5th  ed.) 

On  the  return  of  the  citation  and  proof  of  the  service,  the  sur- 
rogate is  required  to  appoint  some  discreet  and  proper  person  to 
appear  and  attend  to  the  interests  of  the  ward  in  the  premises, 
who  shall  consent,  in  writing,  to  such  appointment.  Any  other,  who 
shall  desire  to  do  so,  may  also  appear  in  behalf  of  the  ward.  (Id. 
§  53.)  The  guardian  is  then  to  proceed  to  render  to  the  surrogate 
a  full,  just  and  true  account,  in  writing,  of  all  his  receipts  and  pay- 
ments on  account  of  the  ward,  and  of  all  the  books,  papers,  moneys, 
choses  in  action  and  other  property  of  the  ward,  which  may  be  in 
the  hands  or  under  the  control  of  the  guardian,  and  to  verify  the 
same  by  his  own  oath  and  such  other  evidence  as  shall  be  satisfac- 
tory to  the  surrogate.  (Id.  54.)  If  the  surrogate  shall  be  satis- 
fied that  the  guardian  has,  in  all  respects,  conducted  himself 
honestly  in  the  execution  of  his  trust,  that  he  has  rendered  a  full, 
just  and  true  account,  and  that  the  interest  of  the  ward  would  not 
be  prejudiced  by  allowing  the  guardian  to  resign  his  trust,  he  may 
thereupon  proceed,  in  the  mode  prescribed  by  law,  to  appoint  a 
new  guardian  for  such  ward,  and  order  that  his  former  guardian 
deliver  overall  the  books,  papers,  moneys,  choses  in  action  or  other 
property  of  the  ward  to  such  new  guardian,  and  take  duplicate  re- 
ceipts for  the  same.  (Id.  §  55.   Seaman  v.  Dnryea,  1  Kern.  324.) 

On  delivering  one  of  the  said  receipts  to  the  surrogate  to  be  filed 
in  his  office,  the  surrogate  may  enter  an  order  that  the  former 
guardian,  on  his  own  application,  be  permitted  to  resign  his  trust, 
and  that  he  be  thereupon  discharged  from  any  further  custody  or 
care  of  the  ward  or  of  his  estate.  But  the  ward,  or  his  new  guar- 
dian, is  not  precluded,  by  this  accounting,  from  having  a  further 
account  from  such  former  guardian,  in  relation  to  all  matters  con- 
nected with  his  trust,  before  he  was  permitted  to  resign  the  same  ; 
and  in  relation  to  all  such  matters,  the  sureties  of  the  former  guar- 
dian remain  liable  in  the  same  manner  and  to  the  same  extent  as 
though  such  order  had  not  been  made.     (Id.  §  56.) 

As  any  person  interested  in  the  allowance  or  appointment,  or 
removal  of  a  guardian,  as  next  of  kin,  or  otherwise,  and  any  guar- 
dian who  may  have  been  removed  by  any  surrogate,  may  appeal 
to  the  supreme  court,  within  six  months  after  any  order  shall  have 


ACCOUNTING  BY  GUARDIANS.  463 

been  made  by  the  surrogate,  for  the  appointment  of  a  guardian,  or 
for  his  removal  or  refusing  to  make  such  removal,  it  is  expedient 
that  the  testimony  should,  in  all  these  examinations,  be  reduced  to 
writing. 

Upon  the  removal  of  a  guardian,  a  new  one  may  be  appointed 
by  the  surrogate  as  if  none  had  ever  been  appointed.  (2  R.  S. 
153,  §  IT.) 

In  conclusion,  under  this  section,  a  few  words  will  be  added  on 
the  subject  of  compelling  guardians  to  account  before  the  surro- 
gate, and  of  the  voluntary  accounting  by  such  guardians.  This 
matter  is  regulated  by  statute.  On  the  application  of  the  ward, 
or  of  any  relative  of  such  ward,  and  on  good  cause  being  shown, 
the  guardian  may  be  compelled  to  account,  at  any  time,  in  the 
same  manner  as  an  administrator.  On  arriving  at  age,  the  ward 
may  compel  an  account  before  the  surrogate  without  showing  any 
cause.  (2  R.  S.  152,  §  11.)  But  neither  can  call  the  adminis- 
trators of  a  deceased  guardian  to  account  before  the  surrogate. 
The  remedy  in  such  a  case  is  in  equity,  before  the  supreme  court. 
(Farnsworih  v.  Oliphant,  19  Barb.  30.  Matter  of  Van  Wyck, 
1  Barb.  Ch.  565.) 

The  practice  heretofore  considered,  with  regard  to  compelling 
administrators  and  executors  to  account,  will,  in  general,  apply  to 
this  case.  Obedience  to  an  order  to  account,  and  to  a  decree  di- 
recting the  guardian  to  pay  a  sum  of  money  in  his  hands,  and  the 
like,  may  be  enforced  by  attachment,  or  by  docketing  the  decree 
and  taking  out  execution,  or  by  an  action  on  the  bond  of  the  guar- 
dian. (2  R.  S.  222.  Doran  v.  Dempsey,  1  Bradf.  490.  Sea- 
man v.  Duryea,  1  Kern.  324.) 

The  proceedings  to  compel  guardians  to  account,  when  the  ap- 
plication is  by  the  ward  or  a  relative,  and  the  proceedings  on  the 
part  of  the  guardian  voluntarily  to  render  and  settle  his  accounts, 
are  presented  to  the  surrogate  by  petition  in  writing.  Citations 
are  to  be  issued  and  served  on  the  parties  entitled  to  notice  as  in 
proceedings  to  remove  guardians.  The  attentive  student  can 
easily  frame  the  proceedings  from  those  in  other  cases  which  have 
been  considered. 

The  allowances  to  be  made  to  guardians  for  commissions  and  ex- 


464  ADMEASUREMENT  OF  DOWER. 

penses  are  the  same  as  those  allowed  to  executors  and  administra- 
tors. The  surrogate  is  to  file  the  accounts,  and  to  record  with  his 
decree  a  summary  statement  of  the  same  as  shall  be  finally  settled 
and  allowed  by  him,  which  shall  be  referred  to  and  taken  as  part 
of  the  final  decree.  {Laws  of  1837,  ch.  460,  §  2.  3  R.  IS.  365, 
5th  ed.  See  ante,  p.  428  et  seq.,  as  to  accounts  of  executors  and 
administrators,  and  Appendix  as  to  forms  Nos.  123  to  128.) 


CHAPTER   VII. 

OF    ADMEASUREMENT    OF    DOWER. 

Executors,  administrators  and  guardians  have,  in  general,  noth- 
ing to  do  with  the  subject  of  dower.  That  is  a  matter  between  the 
widow  and  the  heirs.  The  right  to  dower,  however,  sometimes  in- 
cidentally arises  in  the  administration  of  the  estates  of  deceased 
persons,  and  it  is  expressly  provided,  in  the  last  subdivision  of  the 
first  section  of  the  statute  defining  the  jurisdiction  of  surrogates' 
courts,  (2  R.  S.  220,)  that  they  shall  have  power,  amongst  other 
things,  to  cause  the  admeasurement  of  dower  to  widows.  It  will 
not,  therefore,  be  inappropriate  to  the  subject  of  our  treatise  to 
describe  the  nature  of  this  estate ;  the  remedies  to  enforce  the 
right ;  and  more  especially,  the  jurisdiction  of  the  surrogate's 
court,  in  the  premises. 

The  general  rule  with  regard  to  the  right  of  the  widow  to  dow- 
er, as  it  is  declared  by  statute,  is,  that  she  shall  be  endowed  of 
the  third  part  of  all  the  lands  whereof  her  husband  was  seised  of 
an  estate  of  inheritance,  at  any  time  during  the  marriage.  (1  R.  IS. 
740,  §  1.)  There  are  three  things,  therefore,  necessary  to  consum- 
mate the  right ;  marriage,  seisin  of  the  husband  of  an  estate 
of  inheritance,  and  death  of  the  husband. 

At  common  law  the  remedy  of  the  widow  was  either  by  the 
writ  of  right  of  dower,  or  the  writ  of  dower  unde  nihil  habet. 
In  either  case  this  was  a  real  action,  the  proceedings  in  which 
were  complicated,  dilatory  and  expensive.     On  recovering  judg- 


ADMEASUREMENT  OF  DOWER.  465 

ment,  she  was  entitled  to  the  writ  of  habere  facias  seizinam, 
under  which  the  sheriff  was  required  to  set  off  to  her  in  sever- 
alty, by  metes  and  bounds,  where  practicable,  the  one  third  of 
the  estate  of  inheritance  of  which  her  husband  was  seised  dur- 
ing the  coverture,  according  to  the  effect  of  the  recovery.  Be- 
fore such  recovery,  the  widow  had  a  mere  right  to  dower,  which 
was  incapable  of  alienation  so  as  to  vest  in  the  assignee  a  right 
of  action  (Jackson  v.  Aspell,  20  John.  411.  Sutliff  v.  Forgey, 
1  Coiven,  89.  S.  C.  affirmed  5  id.  713.)  She  might,  indeed, 
release  it  to  the  person  having  a  greater  estate,  but  could  not  trans- 
fer it  to  a  stranger ;  and  such  is  the  rule  now. 

The  common  law  remedy  of  the  widow  has  been  abolished ; 
and  if  her  dower  is  not  voluntarily  assigned,  she  may  proceed  by 
an  action  in  the  supreme  court,  either  in  the  nature  of  a  bill  in 
equity  or  in  the  nature  of  an  ejectment,  or  by  petition  to  the  su- 
preme court,  county  court  of  the  county  where  the  lands  lie,  or  to 
the  surrogate  of  the  same  county,  for  the  admeasurement  of  her 
dower  under  the  statute.  (2  R.  S.  488.)  Prior  to  the  code, 
courts  of  equity  had  concurrent  jurisdiction  with  courts  of  law,  in 
suits  for  the  recovery  and  assignment  of  dower.  (Badgley  \. 
Bruce,  4  Paige,  98.)  If  the  facts  be  properly  stated  in  the  com- 
plaint, the  cause  will  be  decided  now  upon  the  same  principles  as 
formerly. 

If  the  dower  be  admeasured  under  the  statute,  and  possession 
is  not  surrendered  to  the  widow,  she  must  still  resort  to  an  action 
in  the  supreme  court,  in  the  nature  of  an  ejectment,  to  obtain  the 
enjoyment  of  her  right.  (Borst  v.  Griffin,  9  We?id.3Q7.  Parks 
v.  Hardey,  4  Bradf.  15.  Jackson  v.  Randall,  5  Cowen,  168.) 
The  statute  make's  no  provision  for  trying  the  title  before  the  sur- 
rogate, and  the  admeasurement  is  conclusive  only  as  to  the  lo- 
cation and  extent  of  the  part  to  which  the  widow  is  entitled, 
after  her  right  is  admitted,  or  established.  The  defendant,  not- 
withstanding the  admeasurement,  may  still  contest  the  legality  of 
the  widow's  right. 

It  is  obviously  not  within  the  scope  of  this  treatise  to  discuss 
the  general  question  as  to  the  right  of  dower,  or  the  various  reme- 
dies to  recover  it.  A  brief  exposition  of  the  practice  before  the 
surrogate,  on  an  application  for  admeasurement  of  dower,  is  all  that 
59 


466  ADMEASUREMENT  OF  DOWER. 

■will  be  attempted.  The  reader  is  referred  to  the  various  treatises 
on  the  practice  of  the  supreme  court,  for  the  mode  of  proceeding, 
the  statutory  remedy  being  the  same  in  all  the  courts.  (Crary's 
Practice  on  Special  Proceedings,  1.) 

A  widow  whose  dower  has  not  been  assigned  to  her,  within  forty 
days  after  the  decease  of  her  husband,  if  she  intends  to  apply  for 
the  admeasurement  of  it  to  the  surrogate  of  the  county,  where  the 
lands  lie,  must  present  her  petition  in  writing,  to  that  officer,  within 
twenty  years  after  the  deafh  of  her  husband,  unless  at  the  time  of 
such  death  she  was  an  infant,  insane,  or  imprisoned  on  a  criminal 
charge.     (2  R.  8.  488,  §  1.     1  R.  S.  742.) 

The  petition  should  state  the  marriage,  seisin  and  the  death  of 
the  husband,  and  particularly  specify  the  lands  to  which  the  widow 
claims  dower  ;  whether  the  husband  died  seised  thereof,  or  aliened 
the  same  in  his  lifetime,  the  names  of  the  persons  owning  the  said 
lands  claiming  a  freehold  estate  therein,  and  their  places  of  abode, 
and  whether  the  same  are  of  full  age  or  infants,  the  names  of  the 
occupants  of  the  lands,  and  concluding  with  a  prayer  for  the  ad- 
measurement of  the  dower  of  the  widow,  and  for  the  appointment  of 
commissioners  for  the  purpose  of  making  such  admeasurement. 
(See  Appendix,  No.  129.) 

If  any  of  the  owners  of  the  land  are  infants  and  have  no  guar- 
dian, the  surrogate,  on  the  application  of  the  widow,  must  appoint 
some  discreet  and  substantial  freeholder  a  guardian  of  such  infants 
for  the  sole  purpose  of  appearing  for  and  taking  care  of  their  in- 
terests in  the  proceedings.  (2  R.  S.  488,  §  4.)  The  practice  in 
making  such  appointment,  is  similar  to  that  pursued  in  the  like 
cases,  on  an  application  for  the  sale  of  real  estate,  except  in  this 
instance  no  notice  is  in  any  case  required  to  be  served  on  the  infant 
preparatory  to  making  the  appointment. 

A  copy  of  the  petition,  with  notice  of  the  time  and  place  when 
it  will  be  presented,  must  be  served,  at  least  twenty  days  previous 
to  its  presentation,  upon  the  heirs  of  the  husband  ;  or,  if  they  are 
not  the  owners  of  the  lands  subject  to  dower,  then  upon  the  owners 
of  such  lands  claiming  a  freehold  estate  therein,  (  Ward  v.  Kilts,  12 
Wend.  137.)  or  their  guardians,  where  any  such  heirs  or  owners 
are  minors,  whether  the  minors  reside  in  the  state  or  not.  (Id.  §  5.) 

Such  notice  may  be  served  personally  on  any  party  of  full  age  ; 


APPOINTMENT  OF  COMMISSIONERS.  467 

or  upon  the  guardian  of  minors  ;  or  by  leaving  the  same  with  any 
person  of  proper  age,  at  the  last  residence  of  such  party  or  guar- 
dian, in  case  of  his  temporary  absence  ;  and  if  any  such  heir  or 
owner  be  a  resident  out  of  this  state,  the  service  may  be  upon  the 
tenant  in  actual  occupation  of  the  lands,  or  if  there  be  no  tenant, 
by  publishing  the  same  for  three  weeks  successively,  in  some 
newspaper  printed  in  the  county  where  such  lands  are  situated. 
(Id.  \  3.) 

On  the  day  specified  in  the  notice,  if  the  same  has  been  regular- 
ly served,  the  surrogate,  upon  the  hearing  of  the  parties,  may 
order  that  admeasurement  be  made  of  such  widow's  dower  of  all 
the  lands  of  her  husband,  or  of  such  parts  thereof  as  shall  have 
been  specified  in  such  application.     (Id.  §  9.)    (App.  131,  132.) 

"With  regard  to  the  matters  which  may  properly  be  put  in  issue 
on  this  hearing  before  the  surrogate,  there  is  some  diversity  of 
opinion.  The  owners  of  the  land  out  of  which  dower  is  claimed, 
are  obviously  entitled  to  be  heard  before  the  surrogate  on  the  ap- 
pointment of  the  commissioners.  It  would  seem  also,  on  principle, 
that  any  objection  might  be  raised  and  decided,  affecting  the  juris- 
diction of  the  court,  as  that  the  husband  is  still  living,  and  the  like. 
(Jackson  v.  Totten,  20  J.  R.  411.) 

On  making  the  order  for  admeasurement,  the  surrogate  should 
appoint  three  reputable  and  disinterested  freeholders  commis- 
sioners for  the  purpose  of  making  such  admeasurement,  by  an  order 
which  shall  specify  the  lands  of  which  dower  is  to  be  admeasured, 
and  the  time  at  which  the  commissioners  shall  report.     (Id.  §  10.) 

The  commissioners  are  required  to  be  sworn,  before  entering  on 
their  duties,  that  they  will  faithfully,  honestly  and  impartially 
discharge  the  duties  and  execute  the  trust  reposed  in  them  by 
such  appointment.  (Id.  §  11.)  The  oath  may  be  taken  before  the 
surrogate  or  a  judge  or  clerk  of  any  court  of  record,  or  commis- 
sioner to  take  affidavits.    (App.  133.) 

On  the  death,  resignation  or  refusal  to  serve  of  any  commissioner, 
others  may  be  appointed  in  their  places,  by  the  surrogate,  for  the 
time  being,  and  they  must  be  sworn  in  like  manner.  (Id.  §  12. 
Gale  v.  Edsall,  8  Wend.  460.) 

The  commissioners  are  required  to  execute  their  duties  as 
follows  : 


468  DUTY  OF  COMMISSIONERS. 

1.  To  admeasure  and  lay  off,  as  speedily  as  possible,  the  one- 
third  part  of  the  lands  embraced  in  the  order  for  their  appointment 
as  the  dower  of  such  widow,  designating  such  part  with  posts, 
stones  or  other  permanent  monuments  : 

2.  In  making  such  admeasurement  they  are  to  take  into  view 
any  permanent  improvements  made  upon  the  lands  embraced  in 
said  order,  by  any  heir,  guardian  of  minors,  or  other  owners  since 
the  death  of  the  husband  of  such  widow,  or  since  the  alienation 
thereof  by  such  husband ;  and  if  practicable,  to  award  such  im- 
provements within  that  part  of  the  lands  not  allotted  to  such  widow, 
and  if  not  practicable  so  to  award  the  same,  they  are  to  make  a 
deduction  from  the  lands  allotted  to  such  widow,  proportionate  to 
the  benfit  she  will  derive  from  such  part  of  the  said  improvements 
as  shall  be  included  in  the  portion  assigned  to  her : 

3.  They  are  to  make  a  full  and  ample  report  of  their  proceed- 
ings, with  the  quantity,  courses  and  distances  of  the  land  admeas- 
ured and  allotted  by  them  to  the  widow,  with  a  description  of  the 
posts,  stones  and  other  permanent  monuments  thereof,  and  the 
items  of  their  charges  to  the  court  by  which  they  were  appointed, 
at  the  time  specified  in  the  order  for  their  appointment : 

4.  They  are  to  employ  a  surveyor  with  necessary  assistants,  to 
aid  them  in  such  admeasurement.     {Id.  §  13.) 

The  commissioners  cannot  inquire  whether  the  husband  has 
made  a  settlement  on  his  wife  in  lieu  of  dower.  {Hyde  v.  Hyde, 
4  Wend.  630.)  Though,  in  general,  dower  is  to  be  assigned  by 
metes  and  bounds,  yet  where  the  subject  matter  does  not  admit  of 
such  division,  she  may  be  entitled  to  one-third  of  the  profits.  (  White 
v.  Storey,  2  Hill,  544.)  If  the  land  was  aliened  by  the  husband 
during  the  marriage,  she  is  entitled  to  dower  only  in  one-third  of 
the  value  at  the  time  of  alienation,  and  no  more.  ( Walker  v. 
JSchyler,  4  Wend.  480.)     (App.  134,  135.) 

The  surrogate  has  power  to  enlarge  the  time  of  making  the  re- 
port, to  adjourn  the  proceedings  from  time  to  time  ;  to  compel 
the  commissioners  to  make  a  report ;  to  discharge  the  com- 
missioners neglecting  to  make  a  report ;  and  to  appoint  others  in 
their  places,  as  often  as  may  be  necessary.  (2  B.  S.  490,  &§  14, 
16.)  The  report,  when  made,  must  be  filed  and  entered  at  large 
in  the  book  provided  for  that  purpose.  (Id.  §  15.   2  JR.  S.  222,  §  7.) 


APPLICATION  BY  THE  HEIRS.  469 

The  foregoing  observations  relate  to  the  proceedings  when  the 
application  is  made  by  the  widow.  The  statute,  however,  extends 
to  a  case  where  the  widow  neglects  to  apply,  and  the  proceedings 
are  conducted  on  the  motion  of  the  heirs  or  owners  of  the  freehold. 
It  was  this  class  of  cases  that  was  mainly  contemplated  by  the  act 
of  1806.     (1  R.  L.  60.) 

On  this  branch  of  the  subject  the  revised  statutes  contain  the 
following  provisions :  "  After  the  expiration  of  forty  days  from 
the  death  of  any  husband,  his  heirs,  or  any  of  them,  or  the 
owners  of  any  land  subject  to  dower,  claiming  a  freehold  estate 
therein,  or  the  guardian  of  any  such  heirs  or  owners,  may,  by  no- 
tice in  writing,  require  the  widow  of  such  husband  to  make  demand 
of  her  dower,  within  ninety  days  after  service  of  such  notice, 
of  the  lands  of  her  deceased  husband,  or  of  such  part  thereof  as 
shall  be  specified  in  such  notice."  (2  R.  S.  489,  §  6.)  If  such 
widow  shall  not  make  her  demand  of  dower,  within  the  time  speci- 
fied in  such  notice,  by  commencing  a  suit,  or  by  an  application  for 
admeasurement,  as  herein  prescribed,  or  if  such  widow  shall  not 
make  such  demand  within  one  year  after  her  husband's  death, 
although  no  notice  to  that  effect  shall  have  been  given ;  the  heirs 
of  the  husband  of  such  widow,  or  any  of  them,  or  the  owners  of  any 
land  subject  to  dower,  claiming  a  freehold  interest  therein,  or  the 
guardian  of  any  such  heirs  or  owners,  may  app'ly,  by  petition,  to 
the  supreme  court  or  to  the  county  court  of  the  county  where  such 
land  is  situated,  or  to  the  surrogate  of  the  same  county,  for  the 
admeasurement  of  the  said  widow's  dower  of  the  lands  of  her  hus- 
band, or  of  such  part  thereof  as  shall  be  specified  in  the  said  peti- 
tion. A  copy  of  such  petition,  with  notice  of  the  time  and  place 
of  presenting  the  same,  shall  be  served  personally  on  such  widow, 
twenty  days  previous  to  its  presentation.  (Id.  §§  7  and  8.)  The 
subsequent  proceedings  are  in  all  respects  the  same  as  where  the 
application  is  originally  made  by  the  widow. 

We  now  proceed  to  notice  the  proceedings  before  the  commis- 
sioner, and  before  the  surrogate,  on  an  application  to  set  aside  their 
report. 

As  the  commissioners  derive  their  authority  from  the  appoint- 
ment, it  is  obvious  they  have  no  power  to  decide  on  questions  rela- 


470  CONFIRMATION  OF  REPORT— COSTS. 

tivc  to  the  widow's  title,  but  must  make  their  admeasurement  in  con- 
formity to  the  order  of  the  surrogate.  Thus,  where  the  surrogate 
ordered  one  third  of  certain  premises  to  be  set  off,  it  was  held  that 
the  commissioners  had  no  right  to  confine  their  admeasurement  to 
one  sixth,  upon  the  ground  that  the  husband  was  entitled  only  to 
one  undivided  half  of  the  land.  (Coates  v.  Cheever,  1  Cowen,  460.) 

Though  the  statute  is  silent  as  to  giving  notice  of  the  time  when 
the  commissioners  will  meet,  to  make  their  admeasurement,  it  would 
seem,  on  principle,  that  a  reasonable  notice  should  be  given  to  the 
parties  to  be  affected  by  their  decision.  (Matter  of  Watkins, 
9  John.  245.) 

In  making  their  assignment,  the  commissioners  have  the  same 
power  as  a  sheriff  under  an  execution  upon  a  judgment  in  dower ; 
and  accordingly  are  not  confined  to  the  mere  measuring  off  by 
metes  and  bounds,  but  may  assign  dower  in  mines  wrought  during 
coverture,  or  the  like.  (Coatesv.  Cheever,  supra.)  In  such  cases 
the  examination  of  witnesses  will  often  become  indispensable,  and 
yet  no  adequate  provision  is  made  for  that  purpose. 

If  no  objection  is  made  to  the  report,  and  the  proceedings  of  the 
commissioners  appear  to  be  fair  and  correct,  it  is  pretty  much  of 
course  to  confirm  it.  If,  however,  either  party  is  dissatisfied  with 
it,  and  desires  to  have  it  set  aside,  he  should  give  notice  to  the  other 
party  or  parties  to  be  affected  by  the  decision,  of  his  intended  ap- 
plication to  the  surrogate,  for  that  purpose;  which  notice  should 
be  accompanied  with  copies  of  the  papers  on  which  the  motion  is 
founded. 

The  costs  and  expenses  arising  on  any  proceedings  under  the 
statute,  before  the  surrogate,  are  to  be  taxed  by  him,  and  in  case 
no  appeal  is  entered,  the  said  costs  and  expenses  are  to  be  paid 
equally,  the  one  half  thereof  by  the  widow  and  the  other  half  by 
the  adverse  party.     (2  R.  S.  492,  §  25.) 

The  costs,  however,  of  a  motion  to  set  aside  the  report  of  the 
commissioners  rest,  it  is  presumed,  in  the  discretion  of  the  court, 
and  are  to  be  awarded  under  its  general  power  as  to  costs  to  the 
party,  in  the  judgment  of  the  court  entitled  thereto,  under  a  view 
of  all  the  circumstances  of  the  case.     (2  R.  S.  223,  §  10.) 

The  widow  and  any  heir*or  owner  of  lands  affected  by  the  pro- 


APPEAL.  471 

ceedings,  or  the  guardian  of  such  heir  or  owner,  may,  within  thirty 
days  after  the  order  of  confirmation  of  the  report  of  the  com- 
missioners, appeal  from  such  order  to  the  supreme  court.  This 
appeal  must  be  filed  with  the  surrogate,  but  is  not  effectual  or  valid 
for  any  purpose  until  a  bond  to  the  adverse  party  shall  be  execu- 
ted by  the  appellant  and  filed  with  the  surrogate,  with  security,  to 
be  approved  by  him,  in  the  penal  sum  of  one  hundred  dollars,  condi- 
tioned for  the  diligent  prosecution  of  such  appeal,  and  for  the  pay- 
ment of  all  costs  that  may  be  adjudged  by  the  supreme  court 
against  said  appellant.     (2  R.  8.  491,  §§  19,  20.) 

It  is  the  duty  of  the  surrogate,  when  the  appeal  is  perfected,  on 
receiving  the  amount  of  his  fees  for  the  service,  to  transcribe  the 
petition,  affidavits,  notices,  orders,  reports  and  all  other  proceed- 
ings on  the  said  application,  together  with  the  said  appeal,  to  certify 
them  under  his  official  seal,  and  to  transmit  the  said  copies  to  the 
supreme  court. 

The  further  proceedings  on  the  appeal  do  not  belong  to  this 
work,  but  will  be  found  in  the  statute,  and  in  books  devoted  to  a 
consideration  of  the  practice  of  the  supreme  court. 

The  admeasurement  of  dower  is  seldom  conducted  in  the  surro- 
gate's court,  and  it  is,  in  general,  more  advisable  to  have  the  whole 
proceedings  carried  on  in  the  supreme  court — a  tribunal  having 
jurisdiction  coextensive  with  the  whole  subject,  and  with  more 
ample  means  of  doing  justice  to  the  parties. 


APPENDIX  OF  FORMS. 


No.  1. 

FOKM  OF  A  WILL  AND  CODICIL,  DEVISING  REAL  AND  PERSONAL  ESTATE. 

[Ante,  pp.  98,  112.] 

In  the  name  of  God,  amen.    I,  A.  B.,  of  the  town  of ,  in  the 

county  of and  state  of  New  York,  aged years  and  upwards, 

and  being  of  sound  disposing  mind  and  memory,  do  make  and  publish  this 
my  last  will  and  testament,  in  manner  following,  that  is  to  say : 

First.  I  direct  that  my  funeral  charges,  the  expenses  of  achninistering  my 
estate,  and  all  my  debts,  be  paid  out  of  my  personal  estate ;  and  if  that  be 
insufficient,  I  expressly  charge  the  payment  thereof,  or  of  any  deficiency, 
upon  the  real  estate  whereof  I  may  die  seised  or  possessed,  and  for  that  pur- 
pose I  authorize  my  executors  hereinafter  named,  to  sell,  at  public  or  private 
sale,  the  whole  or  such  part  of  my  real  estate  as  may  be  sufficient  for  that 
purpose. 

Second.  I  give  and  bequeath  to  my  beloved  wife  the  sum  of  ten  thousand 
dollars  with  interest  from  my  death,  in  lieu  of  her  dower  and  of  any  distribu- 
tive share  of  my  estate  to  which  she  might  otherwise  be  entitled. 

Third.  I  give  and  bequeath  to  my  niece,  C.  D.,  of,  &c,  wife  of , 

one  thousand  dollars,  to  be  paid  to  her  out  of  my  personal  estate,  by  my 
executors,  for  her  separate  use,  and  with  power  to  dispose  of  the  same  at  her 
death,  by  will  or  by  an  instrument  in  the  nature  of  a  will,  notwithstanding 
her  coverture  with  her  present  or  any  future  husband.  And  I  further  direct, 
that  if  she  should  die  during  my  lifetime,  leaving  issue,  and  any  of  her  de- 
scendants shall  be  living  at  the  time  of  my  death,  the  said  legacy  shall  not 
lapse ;  but  the  same  shall  be  paid  to  such  descendants  by  my  executors,  to 
wit :  To  all  the  children  of  the  legatee,  in  equal  proportions,  if  all  her  children 
shall  then  be  living,  or  if  none  of  them  have  died  leaving  issue  at  the  time  of 
my  death.  But  if  any  of  her  children  or  descendants  shall  have  died  leaving 
issue,  then  such  issue  or  descendants  to  take  the  share  or  part  of  such  legacy 
which  the  parent  of  such  issue  or  descendants  would  have  taken  by  this  will, 
if  living  at  the  time  of  my  death. 

Fourth.  I  give  and  bequeath  to ,  infant  son  of ,  of 

,  a  legacy  of  one  hundred  dollars  ;  and  I  authorize  my  executors,  if 

60 


474  APPENDIX  OF  FORMS. 

they  shall  deem  it  safe  and  prudent,  to  pay  the  said  legacy  to  the  father  of 
the  said  infant,  and  take  his  receipt  for  the  same,  and  his  agreement  to  hold 
the  same  in  trust  for  the  said  infant,  to  be  paid  to  hirn  when  he  becomes  of 
age,  with  interest  at  the  rate  of  five  per  cent. 

Fifth.  I  give  and  bequeath  to  each  of  my  brothers,  F.  and  G.,  of , 

the  sum  of  five  hunched  dollars,  and  I  direct  that  in  case  either  of  my  said 
brothers  should  die  during  my  lifetime,  his  legacy  shall  not  lapse,  but  shall  go  to 
the  survivor,  Ms  executors,  administrators,  or  assigns.  And  if  both  of  my  said 
brothers  shall  die  during  my  lifetime,  without  issue  or  descendants,  I  then 
direct  that  the  legacies  herein  bequeathed  shall  go  to  my  executors  for  the 
general  purposes  of  the  will. 

Sixth.  I  give  and  bequeath  the  ten  shares  of  100  dollars  each,  of  stock 

which  I  now  own  in  the Bank,  situate  at,  &c,  to  my  friend , 

of 

Seventh.  I  give  and  devise  to  my  beloved  wife  the  dwelling  house  and 

lot  in  the  village  of ,  in  which  I  now  live,  for  and  during  her  natural 

life  ;  and  from  and  after  her  death,  I  give  and  devise  the  same  to  my  son, 
Gr.  H.,  his  heirs  and  assigns  for  ever. 

Eighth.  I  hereby  dispose  of  the  custody  and  tuition  of  my  infant  children 
during  then  minority,  and  while  they  remain  unmarried,  to  my  beloved  wife, 
so  long  as  she  remains  my  widow;  but. if  she  shall  die  or  marry  during  the 
single  life  and  infancy  of  any  of  said  children,  then  and  in  that  case  I  dispose 
of  and  commit  their  custody  and  tuition  to  my  friend ,  of 

Ninth.  I  give,  devise  and  bequeath  all  the  residue  of  my  estate,  real  and 
personal,  to  my  children,  share  and  share  alike,  as  tenants  in  common.  In 
case  any  one  of  my  children  shall  die  in  my  lifetime,  leaving  issue  or  de- 
scendants,! direct  that  his  share  shall  not  lapse,  but  shaU  be  paid  [as  in  the 
3d  item.] 

Tenth,  and  lastly.  I  appoint  my  friend,  E.  F.,  executor  of  this  my  last  will 
and  testament,  hereby  revoking  all  former  wills  by  me  made. 

In  witness  whereof,  I  have  hereto  subscribed  my  name  this day 

of ,  in  the  year  one  thousand  eight  hundred  and  fifty-nine. 

A.  B. 

[Note.  It  is  not  necessary  that  a  will  should  be  under  seal  It  is  good 
either  way,  with  or  without  a  seal.] 

We,  whose  names  are  hereto  subscribed,  do  certify  that  A.  B.,  the  testator, 
subscribed  his  name  to  this  instrument  in  our  presence,  and  in  the  presence  of 
each  of  us,  and  at  the  same  time  he  declared  in  our  presence  and  hearing  that 
the  same  was  his  last  will  and  testament,  and  requested  us,  and  each  of  us, 
to  sign  our  names  thereto  as  witnesses  to  the  execution  thereof,  and  which 
we  have  done  accordingly,  in  the  presence  of  the  testator  and  of  each  other, 
the  day  of  the  date  of  the  said  will. 

J.  K.,  of  the  town  of ,  county  of 

L.  XL,  do  do 


APPENDIX  OF  FORMS.  475 

Clause  in  a  will  or  deed,  limiting  personal  property  to  the  separate  use  of  a 

married  woman. 
I  give  and  bequeath  to  A.  B.  and  C.  D.,  their  executors,  administrators  and 
assigns,  the  sum  of  two  thousand  dollars,  in  trust,  to  receive  the  interest  thereof 
during  the  joint  lives  of  Q.  H.  and  E.  F.  his  wife,  and  to  pay  the  same  to 
the  said  E.  F.  and  her  assigns,  notwithstanding  her  coverture,  for  her  sole  and 
separate  use,  from  time  to  time,  during  the  joint  lives  of  the  said  G.  H. 
and  E.  F.  his  wife,(a)  so  that  the  said  E.  F.  shall  not  sell,  mortgage,  charge  or 
otherwise  dispose  of  the  same  in  the  way  of  anticipation,  (b)  And  if  the  said 
E.  F.  should  survive  the  said  Gr.  H.,  her  husband,  then  upon  trust  to  pay  the 
said  principal  sum  of  two  thousand  dollars  to  the  said  E.  F.,  her  executors, 
administrators  or  assigns ;  but  in  case  the  said  E.  F.  should  die  in  the  lifetime 
of  the  said  G.  H.,  her  husband,  then  in  trust,  after  the  decease  of  the  said 
E.  F.  to  assign  and  transfer  the  said  sum  of  two  thousand  dollars  to  such  per- 
son or  persons,  and  in  such  shares,  and  subject  to  such  conditions,  as  the 
said  E.  F.  notwithstanding  her  coverture,  by  her  last  will  and  testament  in 
writing,  or  by  any  writing  in  the  nature  of,  or  purporting  to  be,  her  last  will 
and  testament,  should  limit  or  appoint,  (c)  and  in  default  thereof,  upon  trust  to 
pay,  transfer  and  assign  the  same  to  the  next  of  kin(cZ)  of  the  said  E.  F.,  their 
executors,  administrators  and  assigns,  according  to  the  statute  for  the  distri- 
bution of  the  effects  of  persons  dying  intestate. 

Clause  in  a  will,  limiting  real  estate  to  the  separate  use  of  a  married  woman. 

I  give  and  devise  to  A.  B.  and  C.  D.,  the  trustees,  during  the  joint  lives  of 
E.  F.,  and  G.  H.  her  husband,  all  that  certain  tract,  piece  or  parcel  of  land, 
[here  describe  the  same,]  upon  trust,  to  pay  the  rents,  issues  and  profits  there- 

(a)  If  the  clause  were  to  stop  here,  E.  F.,  the  wife,  would  have  power  by  vir- 
tue of  the  words  "sole  and  separate  use,"  of  disposing  of  the  entire  of  her  life 
interest  in  this  money,  by  what  is  termed  a  "  sweeping  appointment,"  not- 
withstanding the  direction  that  the  payment  shall  be  "  from  time  to  time." 

(b)  As  to  the  effect  of  this  sentence,  see  Clancey's  Rights  of  Women,  pp.  329, 
330. 

(c)  The  object  and  operation  of  this  clause  is  to  prevent  the  wife  from  dipos- 
ing  of  the  principal  sum,  while  she  is  subject  to  the  influence  of  her  husband,  by  an 
instrument  which  would  take  effect  during  her  life  ;  she  is  therefore  restricted  to  a 
disposition  by  will,  by  which  alone  she  can  convey  it,  if  she  die  during  her  coverture. 
But  if  she  survive  her  husband,  being  then  freed  from  the  marital  authority,  it 
is  given  to  her  absolutely.  (Clancey's  Rights  of  Women,  306,  307.  Id.  625, 
App.,  from  which  the  foregoing  clause  is  taken.), 

(d)  This  ultimate  limitation  to  the  next  of  kin  of  the  wife,  in  the  event  of  her 
dying  in  the  lifetime  of  her  husband,  is  introduced  for  the  purpose  of  excluding 
him  from  any  share  in  this  money,  if  she  should  net  bequeath  it  to  him  ;  for  the 
husband  is  now  held  not  to  be  the  next  of  kin  of  his  wife.  {Clancey's  Rights 
of  Women,  pp.  305,  306.) 


476  APPENDIX  OF  FORMS. 

of  to  the  said  E.  F.,  or  to  such  person  or  persons  as  she  by  writing  should  di- 
rect to  receive  the  same,  during  the  joint  lives  of  the  said  E.  F.  and  G-.  H., 
for  her  sole  and  separate  use,  so  that  the  said  E.  F.  shall  not  sell,  mortgage, 
charge  or  otherwise  dispose  of  the  same  in  the  way  of  anticipation.  And 
from  and  immediately  after  the  decease  of  the  said  G.  II.,  her  husband,  in  case 
the  said  E.  F.  should  survive  him,  then  to  the  said  E.  F.,  her  heirs  and  assigns 
for  ever ;  but  in  case  the  said  E.  F.  should  die  in  the  lifetime  of  the  said  G-.  H., 
then  to  the  use  of  such  persons,  for  such  estates  and  charges  as  the  said  E.  F., 
by  her  last  will  and  testament  in  writing,  or  by  any  writing  in  the  nature  of, 
or  purporting  to  be,  her  last  will  and  testament,  in  the  presence  of  two  wit- 
nesses, should  direct,  limit  or  appoint,  and  in  default  thereof,  then  to  the  use 
of  L.  M.,  his  heirs  and  assigns  for  ever.(e) 


No.  2. 
CODICIL. 

This  is  a  codicil  to  my  last  will  and  testament,  bearing  date  the day 

of ,  1859. 

I  give  and  bequeath  to  my  niece  C.  D.,  wife  of ,  two  hundred 'and 

fifty  dollars  in  addition  to  the  legacy  bequeathed  to  her  in  my  said  will,  which 
sum  is  to  be  for  her  own  use,  and  subject  to  her  power  of  disposition,  and  not 
to  lapse,  and  to  be  in  all  other  respects  like  the  said  original  legacy. 

I  nominate  and  appoint executor  of  my  last  will  and  testament,  in- 
stead of  E.  T.,  who  has  recently  departed  this  life.     In  witness  whereof,  &c. 

[To  be  executed  and  attested  like  the  original  will.] 


No.  3. 
RENUNCIATION  OF  AN  EXECUTOR. 

[2  R.  S.  70,  §  8.    Ante,  p.  141.] 

I.,  A.  B.,  named  as  executor  in  the  last  will  and  testament  of  C.  D.,  late  of 
,  deceased,  do  by  these  presents  renounce  the  appointment  of  executor 


(c)  The  plan  of  this  instrument  is  similar  to  that  of  the  preceding  one.  The 
object  is  to  exclude  the  husband  from  all  control  over  this  property,  during  cov- 
erture, and  even  after  his  wife's  death,  unless  she  should  think  proper  to  devise 
it  to  him,  according  to  her  power.  And  to  effect  this  purpose,  a  life  estate  is 
given  to  her  in  the  rents  and  profits,  for  her  separate  use,  with  a  power  to  her  to 
dispose  of  the  capital  of  the  estate  by  will,  if  she  should  die  during  the  cov- 
erture ;  and  if  she  should  survive  her  husband,  the  whole  estate  is  her's  abso- 
lutely. And,  as  if  it  were  limited  to  her  heirs,  in  the  event  of  her  dying  dur- 
ing coverture,  without  having  devised  it,  her  husband,  in  such  a  case,  would  bo 
tenant  by  the  ucrtesy,  it  is  upon  the  occurrence  of  that  contingency,  limited  to  a 
third  person  and  his  heirs,  for  the  purpose  of  excluding  the  husband  from  such 
interest.  (Clancey's  Rights  of  Women,  526,  C27,  from  which  the  foregoing, 
slightly  alterered,  is  taken.     And  see  Willard's  Eq.  Juris.  416-419,  490  et  seq.) 


APPENDIX  OF  FORMS.  477 

of  the  said  will.     In  witness  whereof,  I  have  hereto  subscribed  my  name  this 
day  of ,  A.  D.  18... 

A.  B. 

In  presence  of  us, 

CD. 
E.  F. 

Washington  County,  ss :  C.  D.,  being  duly  sworn,  saith  that  the  foregoing 
renunciation  was  signed  by  A.  B.,  in  presence  of  this  deponent  and  E.  F.,  and 
this  deponent  and  the  said  E.  F.  respectively  subscribed  their  names  thereto,  as 
witnesses  to  the  execution  thereof. 

Sworn,  &c.  C.  D. 


No.  4. 

ORDER  ON  FILING  RENUNCIATION. 

[Ante,  p.  141.] 


In  the  Matter  of  proving  the  last 

Will  and  Testament  of ,  V       Dated,  

deceased. 

On  filing  the  renunciation  of  A.  B.,  as  executor  of  the  last  will  and  testa- 
ment of ,  deceased,  and  the  affidavit  of  the  due  execution  thereof,  it 

is  ordered  that  the  said  renunciation  be  and  the  same  is  hereby  entered,  and 
that  the  same  be  recorded  in  the  minutes  of  this  court. 


No.  5. 

PETITION  FOR  CITATION  ON  PRESENTING  WILL  FOR  PROOF. 

[Laws  of  1837,  ch.  4G0.     Ante,  pp.  152,  154,  158,  174.] 

To  the  surrogate  of  the  county  of 

The  petition  of ,  respectfully  showeth : 

That late,  of  the  town  of ,  in  the  county  of 

farmer,  departed  this  life,  at  his  residence  in  the  said  county,  on  the 

day  of ,  last  having  first,  as  your  petitioner  is  informed  and  believes, 

duly  made  and  published  his  last  will  and  testament,  in  which  your  petitioner 
is  named  as  executor,  and  which  he  now  offers  for  probate  as  the  law  directs  ■ 
that  the  said  will  relates  to  both  real  and  personal  estate.     That  the  said 
....  was,  at  the  time  of  his  death,  an  inhabitant  of  the  said  county  of  ...  . 

,  and  that  he  left  him  surviving  a  widow  named ,  who  is  of  full 

age,  and  who  now  resides  at ,  in  said  county,  and  children,  as  follows 

his  heirs  at  law,  to  wit : 

G.  H.,  of ,  in  said  county,  aged  about  24  years. 

L.  M.,  of  the  same  place,  an  infant,  of  the  age  of  about  18  years,  and  who 


478  APPENDIX  OF  FORMS. 

has  no  guardian  to  the  knowledge  of  your  petitioner,  [or,  if  such  be  the  fact,] 
that  he  left  no  widow  or  children  him  surviving,  and  that  upon  diligent  in- 
quiry, the  names  and  places  of  residence  of  his  heirs  at  law  cannot  be  ascer- 
tained' [or,  if  such  be  the  fact,]  that  his  heirs  at  law  and  next  of  kin,  are 

,  a  brother  of  the  deceased,  who  now  resides  at ,  in  said 

county,  and  is  of  full  age,  and ,  a  sister  of  the  deceased,  the  wife  of 

,  of ,  in  said  county,  of  lawful  age. 

Note.  The  next  of  kin  at  the  time  of  the  death  of  the  testator  are  to  be  men- 
tioned, and  if  they  are  all  dead,  then  the  persons  who  have,  by  such  death, 
become  next  of  kin,  at  the  time  of  the  application. 

Tour  petitioner  is  advised  that  the  surrogate  of  the  county  of ,  has 

jurisdiction  to  take  the  proof  of  the  said  will,  and  to  grant  letters  testamentary 
thereon,  and  your  petitioner  is  desirous  that  the  said  will  should  be  admitted 
to  probate  and  recorded  as  a  will  of  real  estate,  in  pursuance  of  the  statute  in 
such  case  made  and  provided : 

Your  petitioner,  therefore,  prays  that  a  guardian  ad  litem  be  appointed  for 
the  said  infant,  for  the  sole  purpose  of  taking  care  of  his  interest  in  the 
premises,  and  that  a  citation  may  in  due  form  be  issued,  out  of  and  under  the 
seal  of  the  said  surrogate's  court,  to  be  directed  to  the  proper  persons_pursu- 
suant  to  the  said  statute,  requiring  them,  and  each  of  them,  at  such  time  and 
place  as  shall  be  in  the  said  citation  mentioned,  to  appear  and  attend  the  pro- 
bate of  the  said  will,  and  that  such  further  and  other  proceedings  may  be  had 
for  proving  and  recording  said  will  and  the  granting  probate  and  letters  testa- 
mentary thereon,  as  they  shall  be  advised  are  necessary  and  proper.  And 
your  petitioner  will  ever  pray,  &c. 

(Signed,) 


No.  6. 
JURAT. 

State  of  New  York,  ) 
Saratoga  County,    ) 

On  this day  of ,  1859,  before  the  undersigned,  surrogate 

of  the  county  of ,  personally  appeared  the  above  named  petitioner, 

who  being  by  me  duly  sworn,  did  say  that  he  had  read  [or  heard  read]  the 
foregoing  petition  by  him  subscribed,  and  knew  the  contents  thereof,  and  that 
the  same  was  true  of  his  own  knowledge,  except  as  to  the  matters  therein 
stated  to  be  on  his  information  and  belief,  and  as  to  those  matters  he  believed 
it  to  be  true. 

Surrogate. 
[If  the  will  only  relates  to  personal  estate,  omit  the  words  in  italics  in  the 
petition.] 


APPENDIX  OP  FORMS.  479 

No.  7. 

CONSENT  TO  BE  APPOINTED  AND  TO  SERVE  AS  SPECIAL  GUARDIAN. 

[Ante,  pp.  152,  158.] 

Surrogates'  Court. — County,  ss: 

In  the  Matter  of  proving  the  last 

"Will  and  Testament  of 

late  of ,  deceased. 

Ij ,  of ,  do  hereby  consent  to  be  appointed  by  the  sur- 
rogate of  the  county  of ,  special  guardian  for  ,  an  infant 

heir  of ,  deceased,  for  the  sole  purpose  of  taking  care  of  the  interests 

of  the  said  infants  in  the  matter  of  proving  the  last  will  and  testament  of  the 
said  deceased,  and  I  consent  to  serve  as  such  guardian. 

Dated,  (Signed,) 


No.  8. 

ORDER  APPOINTING  SPECIAL  GUARDIAN. 

[Ante,  pp.  152,  158.] 

At  a  surrogate's  court  held  in  and  for  the  comity  of ,  at  the  sur- 
rogate's office  in  said  county,  on  the day  of ,  1859, 

Present, ,  Surrogate* 

In  the  Matter  of  proving  the  last 

Will  and  Testament  of 

deceased. 

It  appearing  from  the  petition  of ,  propounding  for  probate  the 

last  will  and  testament  of ,  late  of ,  deceased,  that 

one  of  the  heirs  at  law  of  the  said  deceased,  [or  next  of  kin,]  is  an  infant  under 
the  age  of  twenty-one  years,  having  no  general  guardian ;  and  on  reading  and 

filing  the  consent  of to  be  appointed  and  to  serve  as  such  guardian, 

for  the  sole  purpose  of  appearing  for,  and  taking  care  of,  the  interests  of  the 

said  infant  in  this  matter,  it  is  ordered  that  the  said  be  and  he 

hereby  is,  appointed  the  special  guardian  for  the  said ,  to  take  care 

of  his  interests  in  this  matter. 

*  A  formal  caption,  as  above,  is  only  necessary  to  the  copy  of  an  order  issued 
by  the  surrogate,.  The  entry  in  the  minute  book  should  contain  the  title  of  the 
cause,  and  the  date  of  its  being  entered. 


480  APPENDIX  OF  FOKMS. 

No.  9. 

ORDER  FOR  CITATION. 

[Ante,  p.  152.] 
Title.    (As  in  No.  8.)  At,  &c,     (As  in  No.  8.) 

On  reading  and  filing  the  petition  of ,  duly  verified,  propounding 

the  last  will  and  testament  of ,  late  of ,  deceased,  for  pro- 
bate, it  is  ordered  that  a  citation  issue  to  the  proper  persons,  pursuant  to  the 

prayer  of  the  petition,  requiring  them  to  appear  in  this  court  on  the 

day  of next,  at  10,  A.  M.,  and  attend  the  probate  of  the  said  will. 

Note. — A  will  relating  to  personal  estate  may  be  admitted  to  probate  with- 
out a  citation,  Avhere  the  widow  or  next  of  kin  are  of  full  age,  and  such  of 
them  as  are  not  executors,  waive  the  necessity  of  a  citation.  Such  waiver 
should  be  by  a  stipulation  in  writing.  The  petition  will  be  modified,  as  well 
as  the  order  for  proof 


No.  10. 

CITATION  TO  PROVE  WILL. 

[Ante,  pp.  152,  154.] 

The  people  of  the  state  of  New  York,  by  the  grace  of  God,  free  and  inde- 
pendent: 

To  A.  B.,  of ,  C.  D.,  of ,  &c,  [naming  each  of  the  per- 
sons and  stating  their  place  of  residence ;  if  any  are  minors,  specifying  their 
guardians  by  name,  and  stating  their  place  of  residence.  If  the  name  or  place  of 
abode  of  any  person  who  ought  to  be  cited  cannot  be  ascertained,  such  fact 
should  be  stated  in  the  citation ;  if  a  female  heir  or  next  of  kin  be  married, 
the  name  of  her  husband  as  well  as  her  own  must  be  stated.] 

"Whereas, ,  of  the  town  of ,  in  said  county,  have  lately 

applied  to  our  surrogate  of  our  county  of ,  for  proof  of  the  will  of 

,  late  of ,  deceased,  which  will  relates  to  both  real  and  per- 
sonal estate :  Therefore,  you  and  each  of  you,  are  cited  and  required  to  appear 

at  the  office  of  the  said  surrogate,  in  the ,  in  said  county,  on , 

at  ten  o'clock,  A.  M.  of  said  day,  to  attend  the  probate  of  said  will. 

In  testimony  whereof,  we  have  caused  the  seal  of  office  of  our  said  surrogate 

to  be  hereto  affixed.     Witness, surrogate  of  the  county  of 

[seal.]     ,  at  the  surrogate's  office  in  said  county,  the day 

of ,  in  the  year  of  our  Lord, 

Surrogate. 


APPENDIX  OF  FORMS.  481 

NO.  11. 
PROOF  OF  SERVICE  OF  CITATION. 
[Ante,  p.  153.] 
County  of ,  ss:    A.  B.,  of ,  in  said  county,  being  duly- 
sworn,  saith,  that  he  did,  on  the day  of ,  1859,  serve  the 

annexed  citation  on  the  following  named  persons  mentioned  therein,  to  wit: 

,  by  delivering  to  each  of  them,  respectively,  a  copy  thereof, 

[or  otherwise  state  the  mode  of  service.] 

Sworn,  &c.  (Signed.) 

i 

ADMISSION   OF   SERVICE. 

. ,  admit  due  service  of  the  within  citation,  this day  of 


.,  1859. 

(Signed.) 


No.  12. 
SUBPOENA  FOR  WITNESSES. 

[Ante,  p.  48.] 
County  of 

The  people  of  the  state  of  New  York,  by  the  grace  of  God,  free  and  inde- 
pendent : 

To ,  Greeting : 

We  command  you,  and  each  of  you,  that  all  business  and  excuses  being 
laid  aside,  you  and  each  of  you,  personally  be  and  appear  before  our  surro- 
gate  of  our  county  of   ,    at  his   office   in    ,    on  the 

day  of   next,  at   10  A.   M.,   to   testify  and   give 

evidence  in  the  matter  of  proving  the  last  will  and  testament  of , 

late  of    ,  deceased,  now  pending  before    our   said  surrogate;! 

and  for  a  failure  to  attend  you  will  be  deemed  guilty  of  a  contempt  of  court, 
and  be  responsible  to  the  aggrieved  party  for  the  loss  and  hindrance  sustained 
by  such  failure,  and  for  all  other  damages  sustained  thereby,  and  will  forfeit  to 
such  aggrieved  party  fifty  dollars  in  addition  to  such  damages. 

In  testimony  whereof,  we  have  caused  the  seal  of  office  of  our  said  surro- 
gate to  be  hereto  affixed.     Witness, ,  surrogate  of  our  said 

[h.  s.]     county,  at  the  surrogate's  office  in  said  county,  the day  of 

,  in  the  year  of  our  Lord,  one  thousand  eight  hundred  and 

fifty-nine. 

(Signed.) 

61 


482  APPENDIX  OP  FORMS. 


No.  13. 

FORMS  OF  DEPOSITIONS  OF  WITNESSES  PROVING  WILL  AND  PROOF 
OF  CUSTODY. 

[Ante,  pp.  165,  172.] 

Surrogate's  Court — Saratoga  County. 


In  the  Matter  of  proving  the  last 

Will  and  Testament  of , 

late  of ,  deceased. 


County  of  Saratoga,  ss :    A.  B.,  of ,  in  said  county,  being  duly 

sworn  and  examined  before  C.  A.  W.,  surrogate  of  the  county  of  Saratoga, 

doth  depose  and  say,  that  he  was  acquainted  with ,  the  testator 

named  in  an  instrument  now  produced  and  offered  to  the  said  surrogate,  pur- 
porting to  be  the  last  will  and  testament  of  the  above  named ,  bear- 
ing date ;  that  this  deponent,  on  or  about  the day  of 

last,  received  the  same  from  the  said immediately 

after  the  execution  thereof  by  the  said  testator,  and  the  same  has  remained  in 
the  custody  of  this  deponent  until  deposited  with  the  surrogate  for  probate, 
and  that  while  the  said  instrument  remained  in  the  custody  of  this  deponent, 
it  has  been  in  no  respect  altered  or  changed. 

(Signed.) 

Sworn,  &c. 


No.  14. 
DEPOSITIONS  OF  THE  SUBSCRIBING  WITNESSES. 
[Ante,  pp.  165,  172.] 
Surrogate's  Cohort — Saratoga  County. 


In  the  Matter  of  proving  the  last 

Will  and  Testament  of , 

late  of ,  deceased,  as  a 

Will  of  Real  and  Personal  Es- 


Saratoga  County,  ss :    A.  B.,  of ,  in  said  county,  being  duly  sworn 

and  examined  before  C.  A.  Waldron,  surrogate  of  the  said  county,  deposeth 

and  saith,  that  he  was  well  acquainted  with ,  in  his  lifetime,  and  was 

present  and  saw  the  said subscribe  his  name  at  the  end  of  the  instru- 
ment in  writing  now  produced  and  shown  to  this  deponent,  bearing  date  the 

day  of ,  purporting  to  be  the  last  will  and  testament  of  the 

said ,  deceased.     That  the  said ,  at  the  time  he  so  subscribed 


APPENDIX  OF  FORMS.  483 

it,  declared  the  said  instrument  to  be  his  last  will  and  testament,  and  requested 
this  deponent  and to  subscribe  their  names  as  witnesses  to  the  exe- 
cution thereof.     Thereupon  tins  deponent  and  the  said ,  in  obedience 

to  said  request,  accordingly  subscribed  their  names  as  witnesses  at  the  end  of 

the  said  instrument,  in  the  presence  of  the  said ,  testator,  and  of  each 

other.     This  deponent  further  saith,  that  the  said ,  at  the  time  he  so 

executed  the  said  will,  was  a  citizen  of  the  United  States,  an  inhabitant  of  the 
county  of  Saratoga,  of  full  age,  of  sound  disposing  mind  and  memory,  in  all 
respects  competent  to  devise  real  estate,  and  not  under  any  restraint,  or  in  any 
respect  incompetent  to  devise  real  estate,  to  the  knowledge  or  belief  of  this 
deponent. 

Sworn,  &c.  (Subscribed.) 

[The  deposition  of  the  other  subscribing  witness  will  be  the  same,  mutatis 
mutandis.] 


No.  15. 

SUBPOENA  DUCES  TECUM. 

[Ante,  p.  48.] 

[Same  as  No.  12  to  the  f,  and  then  as  follows :]    And  also,  that  you  bring 

along  with  you  an  instrument  hi  writing,  said  to  be  in  your  custody  or 

runder  your  power  and  control,  purporting  to  be  the  last  will  and  testament  of 

,  late  of ,  deceased,  and  also  the  codicil  thereto.     [Also  modify 

the  subsequent  part,  so  that  it  may  be  read  on  failure  to  attend  and  produce 
such  will.]    You  will,  &c. 


No.  16. 


ORDER  TO  BE  ENTERED  IN  THE  MINUTES,  PREVIOUS  TO  ISSUING 
THE  SUBP(ENA. 

[Ante,  p.  51.] 

Title.      (As  in  No.  8.) 

On  motion  of ,  ordered  that  a  subpoena  issue  for ,  as  a 

witness  in  this  matter  on  the  part  of ,  and  that  he  be  required  to  bring 

along  with  him  the  will  of ,  deceased. 

Note.  The  proceedings  to  enforce  obedience  to  the  subpoena  by  attach- 
ment, and  for  the  examination  of  foreign  witnesses  by  commissioners,  are  simi- 
lar to  the  corresponding  proceedings  in  courts  of  record. 


484  APPENDIX  OF  FORMS. 

No.  17. 

ORDER  ADMITTING  "WILL  TO  PROBATE  AND  RECORD. 

[Ante,  p.  159.] 

Title.     (As  in  No.  8.)  Title.     (As  in  No.  8.) 

On  filing  the  citation  heretofore  issued  in  this  matter,  and  returnable  the 

day  of ,  and  due  evidence  of  the  proper  service  thereof 

on  all  the  proper  parties  to  this  proceeding,  it  is  ordered  that ,  ex- 
ecutor named  in  an  instrument,  in  writing,  offered  by  him  for  probate  and 

record,  as  the  last  will  and  testament  of ,  late  of ,  deceased, 

bearing  date  the ,  day  of ,  have  leave  to  proceed  to  the  proof 

of  the  said  supposed  will.  Whereupon  the  heirs  [or  next  of  kin,  &c]  appear 
by ,  their  counsel,  [or  fail  to  appear,  as  the  case  may  be.]  And  here- 
upon   ,  subscribing  witnesses  to  the  said  instrument,  in  wri- 
ting, were  sworn  and  examined,  [and  divers  other  witnesses,  if  such  was  the 
fact,]  and  due  deliberation  being  thereupon  had ;  and  it  appearing,  upon  the 
proof  taken,  that  the  the  said  will  was  duly  executed ;  that  the  said  testator 
at  the  time  of  executing  it  was  of  full  age  for  making  a  will,  of  sound  dispos- 
ing mind  and  memory,  and  not  under  restraint,  and  was  in  all  respects  com- 
petent to  devise  real  estate ;  and  the  said  surrogate  being  satisfied  of  the 
genuineness  and  validity  of  the  said  will:  Whereupon,  on  motion  of  C.  S.  Les- 
ter, Esq.  of  counsel  for  the  executor,  it  is  ordered,  adjudged  and  decreed,  and 
the  said  surrogate  by  virtue  of  the  power  vested  in  him,  doth  order,  adjudge 
and  decree,  that  the  said  last  will  and  testament  was  duly  executed,  that  the 
same  is  genuine  and  valid,  and  that  the  same,  together  with  the  proofs  and 
examinations  taken  in  respect  to  the  same,  be  recorded ;  that  the  said  last  will 
and  testament  be  admitted  to  probate,  and  that  the  same  be,  and  hereby  is, 
established  as  a  will  of  real  and  personal  estate. 

And  it  is  further  ordered,  that  letters  testamentary  issue  thereon  to  the  ex- 
ecutors on  their  taking  the  oath  required  by  law,  provided  no  valid  objection 
thereto  is  filed  with  the  said  surrogate.* 


No  18. 
ORDER  FOR  LETTERS  TESTAMENTARY. 

[Ante,  p.  160.] 

Title.     (As  in  No.  8.)  Title.     (As  in  No.  8.) 

The  last  will  and  testament  of ,  late  of ,  deceased,  having 

been  admitted  to  probate  on  the day  of last,  and  no  objec- 
tions having  been  exhibited,  [or  the  objections  having  been  heard  and  ovemded,  as 

*See  3  R.  S.  154,  §  2,  5th  ed. 


APPENDIX  OF  FORMS.  485 

the  case  may  be,]  and  A.  B.  tho  executor  named  in  the  paid  will  having  taken 
the  oath  required  by  law,  [and  executed  ivith  two  sureties,  a  bond,  &c,  where 
bail  is  required^  it  is  ordered  that  letters  testamentary  forthwith  issue  to  the 
said  executor. 


No.  19. 
OATH  OF  EXECUTOR. 
[Ante,  p.  161.] 
County  of  Saratoga,  ss:    I,  A.  M.,  do  swear,  that  I  will  faithfully  and  hon- 
estly discharge  the  duties  of  executor  of  the  last  will  and  testament  of , 

late  of ,  deceased,  according  to  the  best  of  my  knowledge  and  ability. 

A.  M. 
Sworn,  &c,  before 

,  Surrogate. 


No.  20. 
CERTIFICATE  TO  BE  ENDORSED  ON  THE  WILL. 
[Ante,  p.  160.] 
County  of  Saratoga,  ss :    Be  it  remembered,  that  on  the  day  of  the  date 

hereof,  the  last  will  and  testament  of ,  late  of ,  deceased 

(being  the  foregoing  written  instrument)  was  duly  proved  before  C.  A.  W.,  sur- 
rogate of  the  said  county,  according  to  law,  as  and  for  the  last  will  and  testa- 
ment of  the  real  and  personal  estate  of  the  said  deceased ;  which  last  said  will 
and  testament  and  the  proofs  and  examinations  taken  thereon,  are  duly  re- 
corded in  this  office. 

In  testimony  whereof,  the  surrogate  of  the  said  county  hath  hereunto 

[l.  s.]       set  his  hand  and  affixed  Ids  seal  of  office  the day  of 

18... 

Surrogate. 


No.  21. 
FORM  OF  PROBATE. 
[Ante,  pp.  145,  160.] 
[A  correct  copy  of  the  will  with  the  following  certificates.] 
County  of  Saratoga.  ) 
Surrogate's  Office,   )     ' 

Be  it  remembered,  that  on  the  day  of  the  date  hereof,  the  last  will  and  testa- 
ment of ,  late  of ,  deceased,  bearing  date  the day 


486  APPENDIX  OF  FORMS. 

of ,  of  which  the  foregoing  is  a  true  copy,  was  duly  proved  before 

C.  A.  W.,  surrogate  of  the  said  county,  according  to  law,  as  and  for  the  last 
will  and  testament  of  the  real  and  personal  estate  of  said  deceased ;  which 
said  last  will  and  testament,  and  the  proofs  and  examinations  taken  thereon, 
are  recorded  in  this  office. 

[l.  s.]    In  testimony,  &c.  as  in  No.  20. 


:\ 


County  of  Saratoga 
Surrogate's  Office 

Be  it  remembered,  that  on  the  day  of  the  date  hereof,  letters  testamentary 

were  duly  granted  to ,  sole  executor  of  the  last  will  and  testament 

of ,  late  of ,  deceased,  he  having  first  duly  taken  and  subscribed 

an  oath  faithfully  and  honestly  to  discharge  the  duties  of  executor  of  the  said 

win. 

[l.  s.]    In  testimony,  &c.  as  in  No.  20. 


No.  22. 

LETTERS  TESTAMENTARY. 

[Ante,  p.  160.] 

The  People  of  the  State  of  New  York,  by  the  grace  of  God,  free  and 
independent : 

[l.  s.]      To  all  whom  these  presents  shall  come  or  may  concern,  send 
greeting. 

Know  ye,  that  at  the  town  of ,  in  the  county  of  Saratoga,  on  the 

day  of ,  one  thousand  eight  hundred  and ,  before 

,  surrogate  of  our  said  county,  the  last  will  and  testament  of 

,  late  of ,  in  said  county,  deceased,*  was  proved  and  is  now 

approved  and  allowed  by  us ;  and  the  said ,  having  been  at  or  imme- 
diately previous  to  his  death,  an  inhabitant  of  the  county  of  Saratoga,  by 
reason  whereof  the  proving  and  registering  of  said  will,  and  the  granting  ad- 
ministration of  all  and  singular  the  goods,  chattels  and  credits  of  the  said  tes- 
tator, and  also  the  auditing,  allowing  and  final  discharging  the  account  thereof, 
doth  belong  unto  us,  the  administration  of  all  and  singular  the  goods,  chattels 
and  credits  of  the  said  deceased,  and  any  way  concerning  his  will,  is  granted 
unto ,  executor  in  the  said  will  named,  he  being  first  duly  sworn 

*  At  this  point,  some  surrogates  are  in  the  habit  of  adding,  (a  copy  whereof  is 
hereunto  annexed,)  and  to  attach  the  letters  testamentary  to  a  copy  of  the  will. 
Although  this  will  not  vitiate  the  letters,  it  is  not  required,  and  is  contrary  to  cor- 
rect usage.  The  probate  and  the  letters  testamentary  are  different  documents,  and 
should  be  kept  separate.    [See  the  text,  pages  145,  160.] 


APPENDIX  OF  FORMS.  487 

faithfully  and  honestly  to  discharge  the  duties  of  such  executor  according  to 
law. 

In  testimony  whereof,  we  have  caused  the  seal  of  office  of  our  said  sur- 
rogate to  be  hereunto  affixed.     Witness ,  surrogate  of  our 

[l.  s.]    said    county,  at    ,    in  said   county,  the    day  of 

,  one  thousand  eight  hundred  and 

Surrogate. 


oga.   ) 
ice,     J 


.«. 


County  of  Saratoga. 
Surrogate's  Offi< 

Recorded  the  preceding  letters  in  book  A.  of  letters  testamentary,  page 

,  the day  of A.  D.  1859. 

Surrogate. 


No.  2c 


AFFIDAVIT  OF  INTENTION  TO  FILE  OBJECTIONS   AGAINST  TIIE  GRANT- 
ING OF  LETTERS  TESTAMENTARY. 

[Ante,  p.  160.] 

Surrogate's  Court —  County  of  Saratoga. 


In  the  Matter  of  the  Goods  and 
Chattels 
of ,  deceased. 


Saratoga  County,  ss:     A.  B.  of ,  in   ,  being  duly  sworn, 

saith,  that  he  is  a  legatee  named  in  the  last  will  and  testament  of , 

which  has  lately  been  admitted  to  probate  by  the  surrogate  of  the  said  county, 
of  which is  executor  named  in  said  will ;  that  he  intends  to  file  ob- 
jections against  the  granting  of  letters  testamentary  thereof  to  the  said , 

as  executor,  and  is  advised  and  believes  that  there  are  just  and  substantial  ob- 
jections to  the  granting  of  said  letters  to  said  executor. 

Sworn,  &c.  (Signed.) 


No.  24. 
Title.     (As  above.) 

[Ante,  p.  160.] 

To  the  Surrogate  of  the  County  of 

The  undersigned,  a  legatee  [creditor  or  widow]  of  the  above  named  de- 
ceased, respectfully  objects  to  the  granting  of  letters  testamentary 

to    .... ,  executor  named   in  the  said  will,  for  the  following 

reasons : 

First.  For  that  the  said is  incompetent  to  execute  the  duties  of 

his  trust  as  an  executor  of  said  will,  by  reason  of  improvidence. 


488  APPENDIX  OP  FORMS. 

Second.  For  that  the  said is  incompetent  to  discharge  the  duties 

of  said  trust,  by  reason  of  his  habitual  intemperance  in  the  use  of  alcoholic 
drinks. 

[Set  out  the  various  objections.]  (Signed,  &c.) 

Dated. 

ORDER  ON   THE   ABOVE. 

Title. 

On  reading  and  filing  the  objections  of to  the  granting  of  letters 

testamentary  to ,  ordered  that  the  said appear  before  the 

surrogate  on ,  at,  &c,  and  attend  the  inquiry  into  the  said  objections. 

[The  order  allowing  the  objections,  or  dismissing  them,  can  readily  be  framed 
from  the  above.] 


No.  25. 

APPLICATION  TO  REMOVE  AN  EXECUTOR,  AFTER  THE  GRANTING  OP 

LETTERS  TESTAMENTARY. 

[Ante,  p.  234.] 
To  the  Surrogate  of  the  county  of 

The  petition  of ,  a  legatee  named  in  the  last  will  and  testament 

of ,  deceased,  respectfully  showeth :    That  the  above  named  .... 

lately  departed  this  life,  having  first  duly  made  and  published  Ins 

last  will  and  testament,  in  which,  amongst  other  things,  he  bequeathed  to  your 
petitioner  a  certain  legacy  of  one  hundred  dollars,  [or  as  the  case  is,]  and  ap- 
pointed A.  B.  executor;  that  the  said  A.  B.  caused  the  said  will  to  be  ad- 
mitted to  probate  in  the  surrogate's  court  of  the  county  of ,  on  or 

about ,  and  letters  testamentary  thereon  were  granted  to  the  said 

A.  B,  by  the  surrogate  of  the  said  county,  on  or  about ,  as  your  pe- 
titioner is  informed  and  believes ;  that  the  said  A.  B.  has  taken  upon  himself 
the  burden  of  the  execution  of  the  said  will,  and  has  possessed  liimself  of  the 
personal  estate  of  the  deceased  to  a  very  considerable  amount,  as  your  peti- 
tioner is  likewise  informed  and  believes.  And  your  petitioner  further  saith, 
that  the  said  A.  B.  is  in  such  precarious  circumstances  as  not  to  afford  ade- 
quate security  for  his  due  administration  of  the  said  estate ;  [or  that  he  is  about 
to  remove  from  the  state ;  or  set  forth  other  cause  of  complaint,  according  to 
the  fact.]  Your  petitioner  therefore  prays  that  the  said  A.  B.  may  be  super- 
seded ;  or  for  such  other  relief  in  the  premises  as  the  nature  of  the  case  may 
require ;  and  for  that  purpose,  that  a  citation  may  be  issued  to  the  said  A.  B., 
requiring  him  to  appear  before  the  said  surrogate  on  a  day  and  at  a  place  to  be 
therein  inserted,  to  show  cause  why  he  should  not  be  superseded.  And  your 
petitioner  will  ever  pray,  &c. 

Jurat,  as  No.  6. 


APPENDIX  OF  FORMS.  489 

No.  26. 

ORDER  THEREON. 

[Ante,  p.  235.] 


C.  D.  vs.  A.  B.,  Executor  of  the 

last  Will  and  Testament 

of  ,  deceased. 


>  Date. 


On  filing  the  petition  of  the  above  named  complainant,  duly  verified,  setting 
forth  [here  recite  the  substance  of  the  petition,]  and  praying  for  the  aid  of  the 
surrogate  in  the  premises,  it  is  ordered  that  a  citation  issue  to  the  said  A.  B., 
requiring  him  to  personally  be  and  appear  before  the  surrogate,  at  his  office, 

in ,  on ,  to  show  cause  why  he  should  not  be  superseded  as 

such  executor ;  and  to  abide  by  such  order  as  shall  be  made  by  the  surrogate 
in  the  premises. 


No.  27. 
CITATION  IN  PURSUANCE  THEREOF. 
[Ante,  p.  233.] 
The  People,  &c,  to  A.  P.,  executor  of  the  last  will  and  testament  of 

[L-  s-]         ,  greeting: 

You  are  hereby  cited,  personally  to  be  and  appear  before  our  surrogate  of 

our  county  of ,  at  the  surrogate's  office  in ,  on ,  to 

show  cause  why  the  letters  testamentary  on  the  last  will  and  testament  of 

,  deceased,  heretofore  granted  to  you,  should  not  be  superseded,  and  to 

further  do  and  receive  what  shall  be  adjudged  by  our  said  surrogate  in  the 
premises. 

In  testimony,  &c. 
Witness,  &c. 


C.  D. 


No.  28. 

ORDER  TO  SUPERSEDE. 

[Ante,  p.  235.] 

~~1 


vs.  \  Date. 

A.  B.,  Executor  of,  &c. 


J 


On  filing  the  citation  heretofore  issued  in  this  matter  and  returnable  here 
this  day,  and  an  affidavit  of  the  due  service  thereof  on  the  above  defendant, 
and  no  one  appearing  to  oppose,  and  the  snrogate  having  heard  the  proofs  and  allega- 

62 


490  APPENDIX  OF  FORMS. 

tions  on  the  part  of  the  complainant,  [or,  and  the  parties  appeared  by  their 
counsel,  and  the  surrogate  having  heard  the  proofs  and  allegations  of  the  re- 
spective parties ;]  and  it  appearing  to  this  court  that  the  said  A.  B.  has  become 
incompetent,  by  law,  to  serve  as  executor,  by  reason  of  insanity,  it  is  ordered, 
adjudged  and  decreed,  and  this  court,  by  virtue  of  the  power  vested  in  it,  doth 
order,  adjudge  and  decree,  that  the  letters  testamentary,  heretofore  issued  to 
the  said  A.  B.,  on  the  last  will  and  testament  of ,  deceased,  be  super- 
seded. 

Note. — The  foregoing  order  can  be  easily  adapted  to  any  case.     If  the  ap- 
plication for  a  supersedeas  is  denied,  the  order  can  be  modified  accordingly. 


No.  29. 
SUPERSEDEAS. 
[Ante,  p.  235.] 
The  People  of  the  state  of  New  York,  to  all  to  whom  these  presents 
shall  come  or  may  concern,  and  especially  to  A.  B.,  executor  of  the 

[l.  s.]    last  will  and  testament  of ,  late  of ,  deceased,  send 

greeting. 
Whereas,  by  our  letters  testamentary  lately  issued  by  our  surrogate  of  our 

county  of ,  under  liis  seal  of  office,  bearing  date  the day 

of ,  the  administration  of  all  and  singular  the  goods,  chattels  and 

credits  of  the  said  deceased,  and  any  way  concerning  his  will,  was  granted 

unto  you,  the  said ,  executor  in  the  said  will  named,  you  having  first 

taken  and  subscribed  the  oath  required  by  law,  and  because  it  is  sufficiently 

testified  in  our  surrogate's  court  of  our  county  of aforesaid,  that  you 

have  become  incompetent  by  law  to  serve  as  such  executor,  [or  as  the  case  is,]  and 
the  said  court,  after  hearing  the  proofs  and  allegations  of  the  parties  respect- 
ively, has,  by  a  certain  decretal  order,  adjudged  that  the  said  letters  testament- 
ary so  issued  as  aforesaid,  be  superseded  :  Now,  therefore,  be  it  known,  that 
in  pursuance  of  the  said  order  of  our  said  surrogate's  court,  and  of  the  statute 
in  such  case  made  and  provided,  we  have  superseded,  and  by  these  presents 
do  supersede  the  said  letters  testamentary ;  and  we  command  you  that  you 
entirely  cease  from  intermeddling  with  the  administration  of  the  goods,  chat- 
tels and  credits  of  the  said  deceased. 
In  testimony,  &c 
Witness,  &c. 

Note. — The  supersedeas  should  be  recorded  in  the  book  for  recording  let- 
ters testamentary  and  of  general  and  special  administration. 


APPENDIX  OF  FORMS.  491 

No.  30. 
ALLEGATION  TO  CONTEST  PROBATE. 
[Ante,  p.  231.] 
Washington  Surrogate's  Court :    A.  B.,  one  of  the  next  of  kin  of  C.  D.,  late 

of ,  deceased,  alledges  that  heretofore,  to  wit,  on,  &c.,  and  within 

one  year  from  this  day  of  exhibiting  this  allegation,  a  certain  instrument  in 

writing  was  admitted  to  probate  by  the  surrogate  of  the  county  of , 

to  wit,  at ,  in  said  county,  as  and  for  the  last  will  and  testament 

of ,' deceased,  and  that  letters  testamentary  thereon  were  afterwards, 

to  wit,  on ,  granted  by  the  said  surrogate  to ,  an  executor 

named  in  the  said  supposed  will,  [here  set  forth  the  names  and  ages  of  the 
legatees  in  the  supposed  will.]  And  the  said  A.  B.  further  saith,  that  at  the  time 

the  said  supposed  instrument  in  writing  was  subscribed  by  the  said ,  in 

his  lifetime,  and  also  at  the  time  the  same  was  published  and  declared  as  and 

for  his  last  will  and  testament,  to  wit,  at  . . ; ,  the  said was  not 

of  sound  disposing  mind  and  memory,  but  on  the  contrary  thereof,  was  of 
unsound  mind,  and  altogether  incapable  of  making  a  testamentary  disposition 
of  his  affairs,  [or  otherwise,  as  the  facts  may  be.  The  allegation  may  contain 
as  many  articles,  corresponding  to  counts  in  a  declaration,  as  may  be  deemed 
necessary,  and  may  be  concluded  as  follows :]  and  the  said  A.  B.  prays  that  the 
probate  of  the  said  supposed  will  may  be  revoked,  and  for  that  purpose  that  a 

citation  may  be  issued  to ,  named  as  executor  in  the  said  will,  and 

to ,  named  as  legatees  therein,  requiring  them  to  appear  before 

the  surrogate  at  a  time  and  place  therein  to  be  appointed,  to  show  cause  why 
the  probate  of  the  said  supposed  will  should  not  be  revoked,  &c. 


No.  31. 

ORDER  ON  FILING  TUE  ALLEGATION. 

[Ante,  p.  231.] 


A.  B.,  NEXT  OF   KIN   OF ,  DE- 
CEASED, 
VS. 
C.  D.,    EXECUTOR,  AND    E.    F.,    G.    H., 

&C.,  LEGATEES  NAMED  IN  AN  INSTRU- 
MENT IN  WRITING,  ADMITTED  TO  PRO- 
BATE AS  TOE  LAST  WlLL  AND  TESTA- 
MENT OF  THE  SAID  DECEASED. 


Date. 


On  filing  the  allegation  of  A.  B-.,  above  Darned,  setting  forth  [here  briefly 

recite  the  main  charge  of  the  allegation:]  It  is  therefore  ordered,  that  a  cita 


492  APPENDIX  OF  FORMS. 

tion  issue  to  the  above  named  defendants,  executor  and  legatees  named  in 

said  supposed  will,  requiring  them  to  appear  before  the  surrogate  at , 

on ,  to  show  cause  why  the  probate  of  the  said  supposed  will  should 

not  be  revoked. 


No.  32. 

CITATION  THEREON. 

[Ante,  p.  231.] 

The  People  of  the  state  of  New  York,  to  C.  D.,  executor,  and  E.  F., 
G.  H.,  &c,  legatees  named  in  an  instrument  in  writing,  admitted  to 

[l.  s.]     probate  by  the  surrogate  of county,  as  the  last  will  and 

testament  of ,  deceased,  greeting. 

You  are  hereby  cited  personally  to  be  and  appear  before  our  surrogate  of 

,  at ,  on ,  to  show  cause  why  the  probate  granted 

on  an  instrument  in  writing,  purporting  to  be  the  last  will  and  testament  of 

,  deceased,  should  not  be  revoked,  and  to  do  further  and  receive 

what  our  said  surrogate  shall  have  adjudged  in  the  premises. 
In  testimony,  &c. 
"Witness,  &c. 


No.  33. 

ORDER  FOR  REVOCATION. 

[Ante,  p.  232.] 


A.  B. 

vs. 

G.  D.,  E.  F.  &c. 


Date. 


Tliis  cause  having  been  brought  to  a  final  hearing  on  the  pleadings  and 
proofs  therein,  and  after  hearing  counsel  on  the  part  of  the  respective  parties, 
and  it  appearing  to  the  surrogate  from  the  proofs  and  allegations  of  the  parties 

that  the  said ,  deceased,  at  the  time  of  making  the  instrument  in 

writing,  admitted  to  probate  by  this  court  on  the day  of , 

as  the  last  will  and  testament  of  the  deceased,  was  of  unsound  mind  and  alto- 
gether incapable  of  making  a  will,  [or  as  the  facts  maybe;]  it  is  therefore  or- 
dered, adjudged  and  decreed,  and  this  court,  by  virtue  of  the  power  vested  in  it, 
doth  order,  adjudge  and  decree,  that  the  probate  heretofore  granted  by  this  court 

on  the  said  instrument,  as  and  for  the  last  will  and  testament  of  the  said , 

deceased,  be,  and  the  same  is  hereby  annulled  and  revoked.  And  it  is  further 
ordered,  that  the  revocation  of  the  said  probate  be  entered  in  the  records  of 


APPENDIX  OF  FORMS.  493 

this  court  and  be  duly  attested,  and  that  notice  thereof  be  duly  served  on 

,  executor  in  the  said  probate  named,  and  be  published  for  three 

weeks  successively,  in  a  newspaper  printed  in  said  county  called 


No.  34. 

REVOCATION. 

[Ante,  p.  232.] 

The  People  of  the  state  of  New  York,  to  A.  B.,  named  as  executor 
in  a  certain  instrument  in  writing,  heretofore  admitted  to  probate  by 

[l.  s.]    our  surrogate  of  the  county  of ,  as  and  for  the  last  will  and 

testament  of ,  deceased,  and  to  all  others  whom  it  may 

concern,  greeting. 

Whereas,  a  certain  instrument  in  writing  was,  on  the day  of  ... . 

. . . . ,  admitted  to  probate  by  the  surrogate  of  the  county  of ,  as  and 

for  the  last  will  and  testament  of ,  deceased ;  and  whereas,  afterwards, 

to  wit,  on  the day  of ,  one  A.  B.,  one  of  the  next  of  kin  of 

the  said  deceased,  exhibited  and  filed  in  the  office  of  the  surrogate  of  the  said 
county  his  allegations  in  writing  against  the  validity  of  the  said  supposed  will, 
[or  against  the  competency  of  the  proof  of  the  said  supposed  will,]  and  did 
thereupon  pray  the  aid  of  the  said  surrogate  in  the  premises ;  and  whereas 
the  said  surrogate  did  thereupon  issue  a  citation  under  his  seal  of  office  direct- 
ed to  the  said  A.  B.,  named  as  executor  in  the  said  supposed  will,  and  to  the 
legatees  therein  named,  requiring  them  to  appear  before  the  said  surrogate  at 

a  day  now  passed  at  his  office  in ,  to  show  cause  why  the  probate  of 

the  said  supposed  will  should  not  be  revoked,  which  said  citation  was  served 
in  due  form  of  law  on  the  executor  and  legatees  in  the  said  supposed  will 
named,  and  such  proceedings  were  afterwards  had  thereupon  in  our  said  sur- 
rogate's court,  before  our  said  surrogate,  that  it  was  amongst  other  things  or- 
dered, adjudged  and  decreed  by  our  said  surrogate,  that  the  probate  of  the  said 
supposed  will  be  annulled  and  revoked :  Now,  therefore,  in  pursuance  of 
the  said  in  part  recited  order  or  decree  and  of  the  statute  in  such  case  made  and 
provided,  we  have  annulled  and  revoked,  and  by  these  presents  do  annul  and 
revoke  the  said  probate  of  the  said  supposed  will. 
In  testimony,  &e. 
In  witness,  &c. 

Note. — As  the  revocation  of  th<  probateneci     aril    op  rati    asasupersedi 
to  the  letters  testamentary  or  of  administration  with  the  will  annexed,  if  they 
have  been  granted,  it  would  seem  it  should  be  recorded  in  the  book  of  letters 
testamentary,  &c. 


494  APPENDIX  OF  FORMS. 


No.  35. 

PROCEEDINGS  TO  COMPEL  AN  EXECUTOR  TO  ACCEPT  OR  RENOUNCE 
THE  OFFICE. 

[Ante,  p.  143.] 

PETITION. 

To  the  surrogate  of  the  county  of ■• 

The  petition  of respectfully  showeth : 

That  your  petitioner  is  a  creditor  of ,  late  of ,  deceased ; 

that  the  said   departed  this  life  at ,  on  or  about  the 

day  of ,  as  your  petitioner  is  informed  and  believes,  having  first 

duly  made  and  published  his  last  will  and  testament,  in  which,  amongst  other 

things,  A.  B.,  of ,  is  appointed  executor;  that  the  said  executor  on 

or  about  the day  of ,  caused  the  said  will  to  be  admitted 

to  probate  by  the  surrogate  of  the  said  county,  and  although  the  said 

has  not  renounced  the  said  office  of  executor,  he  has  hitherto  neglected 

to  take  the  oath  required  by  law  and  to  receive  letters  testamentary  on  the 
said  will,  notwithstanding  more  than  thirty  days  have  elapsed  since  the  said 
will  was  admitted  to  probate  as  aforesaid. 

Your  petitioner  therefore  prays,  that  the  said  A.  B.  may  be  required  to  ap- 
pear and  qualify  as  such  executor,  within  such  time  as  shall  be  appointed  for 
that  purpose,  or  in  default  thereof  that  he  shall  be  deemed  to  have  renounced 
the  said  appointment.  And  for  that  purpose,  your  petitioner  further  prays 
that  a  summons  may  be  issued,  under  the  seal  of  this  court,  directed  to  the 

said ,  thereby  requiring  him  to  appear  before  the  said  surrogate  and 

qualify  as  such  executor,  within  a  certain  time  therein  to  be  limited,  or  that  in 
default  thereof  he  may  be  deemed  to  have  renounced  the  said  appointment. 
And  your  petitioner  will  ever  pray,  &c. 
Jurat,  as  in  No.  C.  (Signed.) 


No.  3G. 
SUMMONS. 
[Ante,  p.  143.] 
The  People,  &c,  to  A.  B.,  named  as  executor  in  the  last  will  and  tes- 

CL-  s-]     tament  of ,  deceased,  greeting. 

You  are  hereby  summoned  personally  to  be  and  appear  before  our  surrogate 

of  our  county  of ,  on  or  before  the day  of ,  at  ten 

o'clock  A.  M.,  at  the  surrogate's  office  in ,  to  take  the  oath  of  office  as 

executor  of  the  last  will  and  testament  of  the  said  deceased  and  receive  letters 
testamentary  thereon,  [and  to  give  bail  if  it  has  been  required,]  or  in  default 
thereof  you  will  be  deemed  to  have  renounced  the  said  appointment 
In  testimony,  &c. 
Wiin.',  -,  &c. 


APPENDIX  OP  FORMS.  495 


No.  37. 
order  decreeing:  renunciation. 

[Ante,  p.  144.] 

L.  M.  (the  petitioner,) 
vs. 
A.  P.,  Executor,  named  in  the  last  \  Date. 

Will,  and  Testament  of 

deceased. 


On  filing  the  summons  heretofore  issued  in  this  cause  and  returnable  here  this 
day,  and  an  affidavit  of  the  due  service  thereof,  on  the  above  defendant,  and 
the  said  defendant  having  neglected  to  appear  and  qualify  as  executor  of  the 
last  will  and  testament,  according  to  the  tenor  of  the  said  summons,  it  is  or- 
dered, adjudged  and  decreed,  and  this  court,  by  virtue  of  the  power  vested  in  it, 
doth  order,  adjudge  and  decree,  that  the  said  A.  P.,  by  reason  of  his  said  negli- 
gence, has  renounced  the  appointment  of  executor  as  aforesaid. 


No.  38. 

ADMINISTRATION. 

[Ante,  p.  201.] 

PETITION. 

To  the  surrogate  of  the  county  of 

The  petition  of  A.  P.,  of ,  respectfully  showeth  : 

That  your  petitioner  is  the  widow  of ,  late  of ,  deceased. 

That  the  said departed  this  life  at ,  in  .........  on  or 

about  the day  of ,  and  that  he  was  at  or  immediately  pre- 
ceding his  death,  an  inhabitant  of  the  said  county.  That  no  last  will  and  tes- 
tament of  the  said  deceased  has  been  found  or  discovered  to  the  knowledge  of 
your  petitioner,  and  }'our  petitioner  believes  that  the  said died  in- 
testate. 

And  your  petitioner  further  showeth  that  the  probable  value  of  the  personal 
estate  does  not  exceed  the  sum  of  $1000,  and  your  petitioner  prays  that  letters  of 
administration  may  be  granted  to  her  of  the  goods,  chattels  and  credits  of  the 
said  deceased. 

And  your  petitioner  will  ever  pray,  &c. 

Jurat,  as  in  No.  G.  (Signed.) 


496  APPENDIX  OF  FORMS. 

No.  39. 

ORDER  FOR  LETTERS. 

[Ante,  p.  202.] 

In  the  Matter  of   tiie   estate   of 


DECEASED.  '    ^^ 

On  filing  the  petition  of  A.  B.,  widow  of  the  deceased,  duly  verified  by 
affidavit,  by  which  it  appears  that  the  deceased  departed  this  life  intestate,  at 

,  on ,  leaving  the  petitioner  his  widow,  and  possessed  of 

personal  property  of  the  probable  value  of ,  and  praying  that  letters 

of  administration  of  the  goods,  chattels  and  credits  of  the  deceased  may  be 
granted  to  her :  It  is  ordered  that  letters  of  administration  of  the  goods,  chat- 
tels and  credits  of  the  said  deceased  be  issued  to  the  said on  her 

taking  the  oath  required  by  law,  and  entering  into  a  bond  to  the  people  of 
this  state  in  the  penal  sum  of ,  with  two  sufficient  sureties  to  be  ap- 
proved of  by  the  surrogate,  conditioned  that  the  said shall  faithfully 

execute  the  trust  reposed  in  her  as  such  administratrix,  and  obey  all  orders  of 

the  surrrogate  of  the  county  of ,  touching  the  administration  of  the 

estate  committed  to  her. 


No.  40. 

FORM  OF  ADMINISTRATION  BOND. 

[Ante,  p.  202.] 

Know  all  men  by  these  presents :  That  we,  A.  B.,  of ,  widow,  and 

E.  F.,  of ,  and  G.  H.,  of ,  are  held  and  firmly  bound  unto 

the  people  of  the  state  of  New  York,  in  the  sum  of ,  to  be  paid  to 

the  said  people ;  to  which  payment  well  and  truly  to  be  made,  we  bind  our- 
selves, our  and  each  of  our  heirs,  executors  and  administrators,  jointly  and 

severally  firmly  by  these  presents.     Sealed  with  our  seals.     Dated  the 

day  of ,  in  the  year  of  our  Lord,  one  thousand  eight  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the  above  bounden  A.  B. 
shall  faithfully  execute  the  trust  reposed  in  her  as  administratrix  of  all  and 
singular  the  goods,  chattels  and  credits  of ,  late  of ,  de- 
ceased intestate,  and  also  obey  all  orders  of  the  surrogate  of  the  county  of 

,  touching  the  administration  of  the  estate  committed  to  her,  then 

this  obligation  to  be  void,  else  to  remain  in  full  force  and  virtue. 

A.  B.     [l.  s.] 
E.  F.     [l.  s.] 
G.  H.     [l.  s.] 
Sealed  and  delivered  in  presence  of 
M.  W. 


State  of  Neio  York. 
Saratoga  County, 


APPENDIX  OF  FORMS.  497 

■k  ) 
V  ss. 

h    ) 

On  this   day  of ,  1859,  before  me  the  undersigned,  a 

commissioner  of  deeds  of  said  county,  personally  appeared  the  above  named  A. 
B.,  E.  F.,  and  Gr.  II.,  -whom  I  know  to  be  the  persons  respectively  described  in 
the  foregoing  bond,  and  respectively  acknow  1<  sdg< id  that  they  executed  the  same. 

X.  Y.,  Commissioner  of  Deeds. 

AFFIDAVIT   OF  JUSTIFICATION. 

County  of  Saratoga,  ss : — E.  F.,  of ,  in  said  county,  being  duly 

sworn,  saith,  that  he  is  a  householder  residing  in  the  county  of  Saratoga,  and 
is  worth  the  sum  of  [the  penalty  of  the  bond]  over  and  above  all  debts,  lia- 
bilities and  responsibilities. 

Sworn,  &c.  E.  F.  . 

A  similar  affidavit  for  the  other  surety. 

[2  R.  S.  190,  §  148.     Id.  77,  §  42,  and  ante,  p.  202.] 


No.  41. 

OATH  OF  OFFICE  OF  ADMINISTRATOR. 

[Ante,  p.  202.] 


In  the  Matter  of  the  Estate 

of   ,  late  of   , 

deceased. 


I,  A.  B.,  do  solemnly  swear  and  declare,  that  I  will,  honestly  and  faithfully 

discharge  the  duties  of  administrator  of  the  goods,  chattels  and  credits  of , 

deceased,  according  to  law. 

Sworn,  &c.  A.  B. 

No.  42. 

ORDER  FOR  LETTERS  FINAL. 

[Ante,  p.  202.] 


In  the  Matter  of  the  Estate 

OF    , 

DECEASED. 


>  Date. 


A.  B.,  widow  of  the  deceased,  having  taken  the  oath  of  office  as  administra- 
trix, and  having  also,  together  with  C.  D.  and  E.  F.,  her  sureties,  entered  into 

a  bond  to  the  people  of  this  state,  in  the  penal  sum  of ,  and  with  such 

condition  as  is  required  by  law,  and  in  conformity  to  the  former  order  in  this 
matter,  it  is  ordered  that  letters  of  administration  of  the  goods,  chattels  and 
credits  of  the  said  deceased  be  forthwith  issued  to  the  said  A.  B. 

63 


498  APPENDIX  OF  FORMS. 

No.  43. 

[Ante,  p.  202.] 

LETTERS  OF  ADMINISTRATION. 

The  People  of  the  state  of  New  York,  by  the  grace  of  God,  free  and  inde- 
pendent : 

To  E.  F.,  the  widow  of ,  late  of ,  in  the  county  of , 

[l.  s.]    deceased,  send  greeting. 

Whereas ,  late  of ,  departed  this  life  intestate,  being,  at 

or  immediately  previous  to  his  death,  an  inhabitant  of  the  county  of  Saratoga, 
[or  state  according  to  the  fact,  as  required  by  2  R  S.  73,  §  23,  what  will  give 
jurisdiction,]  by  means  whereof  the  ordering  and  granting  administration  of 
all  and  singular  the  goods,  chattels  and  credits,  whereof  the  said  intestate  died 
possessed,  in  the  state  of  New  York,  and  also  the  auditing,  allowing  and  final 
discharging  the  account  thereof,  doth  appertain  unto  us ;  and  we  being  desirous 
that  the  goods,  chattels  and  credits  of  the  said  intestate  may  be  well  and  faith- 
fully administered,  applied  and  disposed  of,  do  drant  unto  you,  the  said  E.  F., 
full  power,  by  these  presents,  to  administer  and  faithfully  dispose  of  all  and 
singular  the  said  goods,  chattels  and  credits ;  to  ask,  demand,  recover  and  re- 
ceive the  debts  which  unto  the  said  intestate,  whilst  living,  and  at  the  time  of 
his  death,  did  belong,  and  to  pay  the  debts  which  the  said  intestate  did  owe, 
as  far  as  such  goods,  chattels  and  credits  will  thereunto  extend  and  the  law  re- 
quire ;  hereby  requiring  you  to  make,  or  cause  to  be  made,  a  true  and  perfect 
inventory  of  all  and  singular  the  goods,  chattels  and  credits  of  the  said  intes- 
tate, within  a  reasonable  time,  and  return  a  duplicate  thereof  to  our  surrogate 
of  our  county  of ,  within  three  months  from  the  date  of  these  pres- 
ents ;  and  if  further  personal  property,  or  assets  of  any  kind,  not  mentioned  in 
any  inventory  that  shall  have  been  so  made,  shall  come  to  your  possession  or 
knowledge,  to  make,  or  cause  to  be  made,  in  like  manner,  a  true  and  perfect 
inventory  thereof,  and  return  the  same  within  two  months  after  discovery 
thereof;  and  also  to  render  a  just  and  true  account  of  administration  when 
thereunto  required;  and  we  do,  by  these  presents,  depute,  constitute  and  appoint 
you,  the  said  E.  F.,  administratrix  of  all  and  singular  the  goods,  chattels  and 
credits  of  the  said ,  deceased. 

In  testimony,  &c. 

Witness,  &c. 


No.  44. 

[Ante,  p.  203.] 

When  the  applicant  is  not  entitled  without  a  citation,  the  petition,  in  addi- 
tion to  the  facts  contained  in  the  preceding  form,  will  disclose  the  names  of 
the  widow  and  next  of  kin  of  the  deceased,  and  whether  they  are  minors  or  not. 


APPENDIX  OF  FORMS.  499 

No.  45. 

ORDER  FOR  CITATION. 

[Ante,  p.  203.] 


In  the  Matter  of  the  Estate 
of ,  deceased.  J  •Datc- 


On  filing  the  petition  of  A.  B.,  a  creditor  of  the  deceased,  setting  forth,  &c. : 
[here,  as  in  the  other  form,  recite  the  substance  of  the  petition  and  the  names 
of  the  next  of  kin,  &c]  It  is  therefore  ordered  that  a  citation  issue  to  the 
widow  and  next  of  kin  of  the  said  deceased,  requiring  them  to  appear  before 

the  surrogate  of  the  county  of ,  at ,011 ,  to  take 

upon  them  the  administration  of  the  goods,  chattels  and  credits  of , 

deceased,  or  to  show  cause  why  letters  of  administration  should  not  be  granted 

to ,  who  has  prayed  for  the  same  as  a  creditor  of  the  deceased ;  [and 

if  the  case  requires  it  add :]  and  it  is  further  ordered  that  a  copy  of  the  said 
citation  be  published  once  a  week  for  six  weeks  successively  in  the  state  paper. 


No.  46. 
CITATION. 

[Ante,  p.  203.] 

The  People  of  the  state  of  New  York,  to  the  widow  and  next  of  kin 

[l.  s.]    of ,  late  of ,  deceased. 

You  are  hereby  cited  personally  to  be  and  appear  before  our  surrogate  of 

our  county  of ,  at  the  surrogate's  office  in ,  in  said  county, 

on  the day  of ,  at  ten  o'clock  in  the  forenoon  of  that  day, 

to  take  upon  you,  or  either  of  you,  the  administration  of  the  goods,  chattels 

and  credits  which  were  of  the  said ,  deceased :  or  to  show  cause  why 

letters  of  administration  should  not  be  granted  of  the  same  to ,  who 

has  prayed  for  the  same  as  a  creditor  of  the  deceased. 

In  testimony,  &c. 

Witness,  &c. 


No.  47. 
ADMINISTRATION  WITH  TIIE  AVILL  ANNEXED. 

[Ante,  pp.  207,  211.] 

If  the  will  was  not  admitted  to  probate  by  the  executor,  and  he  has  re- 
nounced, or  has  been  summoned,  and  refused,  &c,  the  widow  and  next  of  kin 
must  be  cited  by  the  applicant  for  the  letters  to  appear  and  attend  the  probate 
of  the  will  and  to  show  cause  why  letters  of  administration,  witli  the  will  an- 


500  APPENDIX  OF  FORMS. 

nexed,  should  not  be  granted,  &c.  If  the  applicant  is  entitled  to  the  letters, 
the  latter  clause  may  be  omitted.  The  forms,  on  admitting  to  probate,  may  be 
easily  modified  so  as  to  meet  this  case ;  and  the  ordinary  forms  of  letters  of 
administration  may  be  easily  adapted  to  special  letters  durante  minore  cetate, 
&c,  or  ad  colligendum,  &c. 

No.  48. 

PETITION  TO  REVOKE  LETTERS  OF  ADMINISTRATION. 

[Ante,  p.  234.] 

To  the  surrogate  of  the  county  of 

The  petition  of respectfully  showeth : 

That  on  or  about  the day  of ,  letters  of  administration  of 

the  goods,  chattels  and  credits  of ,  late  of  the  town  of ,  de- 
ceased, were  granted  to ,  as  will  more  fully  and  at  large  aj)pear  by 

reference  to  the  records  of  your  court;  that  since  that  time,  to  wit,  on  or  about 

the day  of ,  the  last  will  and  testament  of  the  said  deceased 

has  been  discovered  and  admitted  to  probate  by  the  said  surrogate,  and  letters 

testamentary  thereon  have,  in  fact,  been  issued  to ,  executor  in  the 

said  will  named,  as  by  the  said  records  will  more  fully  appear. 

Tour  petitioner  therefore  prays  that  the  letters  of  administration  granted  as 
aforesaid,  on  account  of  the  supposed  intestacy  of  the  said  deceased,  may  be 
revoked. 

And  your  petitioner  will  ever  pray,  &c.  (Signed.) 

Jurat,  as  hi  No.  6. 


No.  49. 
ORDER  FOR  CITATION. 

The  citation  order  for  revocation,  and  the  revocation,  can  be  readily  framed 
from  the  corresponding  order  and  process  on  obtaining  revocation  of  probate. 
[See  before  Nos.  28,  29,  30  and  31.] 


No.  50. 

RENUNCIATION  OF  A  WIDOW  OR  NEXT  OF  KIN. 

[Ante,  p.  203.] 

I,  A.  B.,  widow  [or  next  of  kin,  as  the  case  may  be,]  of  C.  D.  late  of , 

deceased,  do,  by  these  presents,  renounce  all  my  right  and  title  to  letters  of 
administration  of  the  goods,  chattels  and  credits  of  the  said  deceased. 
Dated. 

Witness,  tied,)  A.  J). 

G.  H. 
IK. 

Affidavit  of  the  execution  of  it  as  in  No.  3. 


APPENDIX  OF  FORMS.  501 

No.  51. 

PROCEEDINGS  TO  TAKE  INVENTORY. 

[Ante,  p.  249.] 

ORDER   FOR   TnE   APPOINTMENT    OF   APPRAISERS. 


In  the  Matter  of  TnE  estate  of  . 

>■  Date. 

,  DECEASED. 


On  the  application  of ,  executor  of  the  last  will  and  testament  of 

the  above  deceased,  [or  administrator  of  the  goods,  chattels  and  credits  of  the 

said  deceased,]  it  is  ordered  that  A.  B.,  of ,  and  C.  D.,  of , 

be  appointed  appraisers  of  the  personal  estate  of  the  deceased. 


No.  52. 
APPOINTMENT  OF  APPRAISERS. 
[Ante,  p.  249.] 
The  People  of  the  State  of  New  York,  by  the  grace  of  God,  free  and 

[l.  s.]    independent,  to  A.  B.  and  C.  D.,  of ,  in  the  county  of , 

send  greeting. 

Whereas, ,  executor  of  the  last  will  and  testament  of , 

late  of ,  in  said  county,  deceased,  has  this  day  applied  to  the  surro- 
gate of  the  county  of for  the  appointment  of  two  disinterested  ap- 
praisers of  the  personal  estate  of  the  said  deceased,  with  a  view  to  the  making 
andj  returning  an  inventory  thereof:  Now,  therefore,  be  it  known  that  the 
said  surrogate,  in  pursuance  of  the  powers  in  him  vested,  and  of  an  order  of  the 
said  court,  hath  appointed,  and  by  these  presents  doth  appoint,  you  the  said 

,  appraisers,  to  estimate  and  appraise  the  personal  property  of  the 

deceased,  and  to  aid  the  said  executor  in  making  a  true  and  perfect  inventory 
of  all  the  goods,  chattels  and  credits  of  the  said  deceased. 
In  testimony,  &c. 
Witness, ,  Surrogate,  &c. 

Note.  2  R.  S.  82,  §§  1,  2.  Some  surrogates  merely  give  a  copy  of  the 
order  to  the  appraisers;  but  an  appointment  as  above  seems  the  preferable 
course. 


No.  53: 

OATH  OP  APPRAISERS,  TO  BE  ANNEXED  TO   OR  INCORPORATED  IN  THE 

INVENTORY. 

[Ante,  p.  249.] 

County  of  Saratoga,  ss:     I, ,  of  the  county  of nfnivsnid, 

appraiser  duly  appointed  by  the  surrogate  of  the  Said  county,  do  swear  and 


502  APPENDIX  OF  FORMS. 

declare  that  I  will  truly,  honestly  and  impartially  appraise  the  personal  prop- 
erty of ,  deceased,  which  shall  be  for  that  purpose  exhibited  to  mc, 

to  the  best  of  my  knowledge  and  ability. 

Sworn,  &c.  (Signed.) 

The  same  oath  to  the  other  appraiser,  unless  both  are  united  in  one. 


No.  54. 

NOTICE  OF  APPRAISAL. 

[Ante,  p.  250.] 

To  the  legatees  and  next  of  kin  of ,  deceased,  residing  in  the 

county  of 

Take  notice,  that  the  executor  of  the  last  will  and  testament  of , 

late  of ,  deceased,  with  the  aid  of  the  appraisers  for  that  purpose, 

duly  appointed  by  the  surrogate  of  said  county,  will,  on  the day  of 

next,  at  nine  o'clock  A.  M.,  at  the  late  dwelling  house  of  the  said 

deceased,  proceed  to  make  an  appraisement  and  inventory  of  all  the  goods, 
chattels  and  credits  of  the  said  deceased. 

Dated.  (Signed,) 


Executor. 


[2  R.  S.  82,  §  4.     Ante,  page  250.] 


No.  55. 
INVENTORY. 

[Ante,  p.  248,  et  seq.] 

A  true  and  perfect  Inventory  of  all  the  goods,  chattels  and  credits  which 

Avere  of ,  late  of ,  deceased,  made  by  the  executor  of  the 

last  will  and  testament  of  the  said  deceased,  with  the  aid,  and  in  the  presence 
of and ,  being  duly  appointed  and  sworn  appraisers ;  con- 
taining a  full,  just  and  true  statement  of  all  the  personal  property  of  the  said 
deceased  which  has  come  to  the  knowledge  of  the  said  executor,  and  particu- 
larly of  all  bank  bdls  and  other  circulating  medium  belonging  to  the  said  de- 
ceased, and  of  all  just  claims  of  the  said  deceased  against  said  executor,  and  of 
all  bonds,  mortgages,  notes  and  other  securities  for  the  payment  of  money 
belonging  to  the  said  deceased ;  specifying  the  name  of  the  debtor  to  each 
irity,  the  date,  the  sum  originally  payable,  the  indorsements  thereon,  with 
their  dates  and  the  sum  which,  in  the  judgement  of  the  appraisers,  may  be 
collectable  on  such  security. 


APPENDIX  OF  FORMS.  503 

[Here  set  out  the  articles  of  the  personal  estate. 

Specie, $100  00 

Bank  notes, 55  00 

One  bay  horse, 100  00 

One  yoke  oxen, 75  00 

One  bond  against  A.  B.,  dated  1st  April,  1850,  conditioned 
to  pay  $500,  with  interest,  two  years  from  date,  on 
which  are  the  following  indorsements — [set  them  out ;] 
on  which  bond  there  is  now  supposed  to  be  due  and 

collectable 400  00 

Or,  the  said  bond  is  not  believed  to  be  collectable,  as  the  case  may  be. 
At  the  close:] 

The  following  articles  are  exempt  from  appraisement,  to  remain  in  the  pos- 
session of  the  widow  of  the  testator,  pursuant  to  the  statute.  [Here  give  a 
list  of  the  exempt  articles.  (3  R.  S.  170,  5th  ed.)  The  articles  exempt, 
under  the  act  of  1842,  must  not,  in  the  aggregate,  exceed  $150  in  value.  The 
family  bible,  family  pictures  'and  school  books,  used  by  or  in  the  family,  are 
specifically  exempted,  without  reference  to  their  value;  the  books  forming 
part  of  the  family  library,  which  do  not  exceed  $50  dollars  in  value,  are  alone 
exempt.  The  other  exemptions  are  limited  as  to  quantity,  but  not  as  to 
value.  Hence,  if  the  forks,  sugar  dish,  milk  pot  and  tea  pot  are  of  silver,  they 
may  be  set  apart  to  the  widow,  as  between  her  and  the  next  of  kin  or  legatees. 
and  perhaps,  also,  as  against  creditors ;  but  this  has  not  yet  been  decided.] 


No.  5G. 

CERTIFICATE  OF  THE  APPRAISERS  TO  BE  SUBJOINED  TO  THE 
INVENTORY. 

[Ante,   p.   257.] 

We  whose  names  are  hereto  subscribed,  appraisers  appointed  by  the  surro- 
gate of  the  county  of ,  having  first  taken  and  subscribed  the  oath 

herein  inserted,  do  certify  that  we  have  estimated  and  appraised  the  property 
in  the  foregoing  inventory  contained  exhibited  to  us,  according  to  the  b<  si  of 
our  knowledge  and  ability,  and  that  we  have  signed  duplicate  inventories 
thereof. 

Dated.  (Signed.) 


No.  57. 
OATH  OF  EXECUTOR  TO  BE  ANNEXED  TO  INVENTORY. 
[Ante,  p.  2G2.] 
State  of  New  York.  ) 
Saratoga  County,  ) 

A.  B.,  of ,  in  said  county,  being  duly  sworn,  saith  that  he  is  the 

executor  of  the  last  will  and  testament  of ,  late  of ,  deceased, 


504  APPENDIX  OF  FORMS. 

and  that  the  annexed  inventory  of  the  personal  estate  of  the  said  deceased  is 
in  all  respects  just  and  true ;  that  it  contains  a  true  statement  of  all  the  personal 
property  of  the  deceased  which  has  come  to  the  knoweldge  of  this  deponent, 
and  particularly  of  all  money,  bank  bills  and  other  circulating  medium  belonging 
to  the  said  deceased,  and  of  all  just  claims  of  the  said  deceased  against  this 
deponent,  according  to  the  best  knowledge  and  belief  of  this  deponent. 

Sworn,  &c.  (Signed.) 

An  inventory  made  and  returned  by  an  administrator  is  the  same,  mutatis 
mutandis;  and  when  there  are  several  executors  or  administrators  who  join 
in  making  and  returning  an  inventory,  the  proceedings  will  be  modified  accord- 
ingly. 


No  58. 


PROCEEDINGS  TO  OBTAIN  AN  APPRAISEMENT  OF  TIIE  GOODS,  &c.  OP 
THE  DECEASED,  BEFORE  THE  ISSUING  OF  LETTERS  TESTAMENTARY 
OR  OF  ADMINISTRATION. 

[Ante,  p.  234.] 

PETITION. 

To  the  surrogate  of  the  county  of 

The  petition  of respectfully  showeth  : 

That  your  petitioner  is  interested  as  a  creditor  in  the  estate  of , 

late  of ,  deceased,  and  deems  it  important  that  a  correct  valuation  of 

the  said  estate  should  be  made,  before  letters  of  administration  thereon  are 
granted,  in  order  that  adequate  security  may  be  taken  for  the  faithful  admin- 
istration thereof.     [If  any  special  reason  exists,  set  it  out.] 

Your  petitioner  therefore  prays  that  a  commission  for  the  appraisement  of 
the  goods,  chattels  and  credits  of  the  said  deceased  be  issued  to  some  discreet 
persons,  to  be  appointed  by  the  surrogate,  and  that  a  monition  issue  against 

,  and  all  others  with  whom  any  of  the  goods,  chattels  and  credits  of 

the  deceased  remain,  that  they  exhibit  or  show  them  to  the  said  appraisers  at 
the  time  and  place  of  the  execution  of  the  said  commission. 

And  your  petitioner  will  ever  pray,  &c. 

Jurat,  as  in  No.  G.  (Signed.) 


APPENDIX  OF  FORMS.  505 

No.  59. 

ORDER  FOR  COMMISSION  AND  MONITION  TO  ISSUE. 

[Ante,  p.  247.] 


►  Date. 


A.  B.,  [the  petitioner,] 

vs. 

E.  F.,  [the  person  having  the 

Goods,  &c] 

. j 

On  filing  the  petition  of it  is  ordered  that  a  commission  for  the 

appraisement  of  the  goods,  chattels  and  credits  of ,  late  of , 

deceased,  be  issued  to  G.  II.,  I.  J.  and  K.  L.,  and  for  the  inspection  of  the 
obligations,  leases,  and  other  writings  and  papers  whatsoever,  concerning  the 
personal  estate  of  the  said  deceased,  at  the  house  of  the  deceased  or  elsewhere, 
with  continuation  and  prorogation  of  the  time  and  place  as  shall  be  needful. 
And  it  is  likewise  ordered  that  a  monition  issue  to  the  above  named  E.  F.  in 
special,  and  all  others  in  general  with  whom  any  of  the  goods,  chattels  or 
credits  of  the  deceased  remain,  that  they  exhibit  the  same  to  the  said  ap- 
praisers at  the  time  and  place  of  the  execution  of  the  said  commission. 


No.  GO. 

COMMISSION  OF  APPRAISEMENT. 

[Ante,  p.  247.] 

The  People  of  the  state  of  New  York,  to  G.  II.,  I.  J.  and  K.  L.,  of , 

(l.  s.]    greeting. 

Whereas,  it  is  represented  unto  our  surrogate  of  our  county  of , 

that ,  of ,  lately  died  intestate,  leaving  goods,  chattels  and 

credits  within  this  state ;  and  whereas,  it  is  also  represented  that  letters  of 
administration  have  not  been  issued  of  the  said  goods,  chattels  and  credits, 
and  that  the  said  goods,  chattels  and  credits  are  in  such  a  situation  as  to  render 
it  impossible  for  the  widow  and  next  of  kin  of  the  said  deceased  to  make  a  true 
estimate  of  their  value ;  and  we,  being  desirous  that  a  just  appraisement  and 
valuation  of  the  said  goods,  chattels  and  credits  may  be  made  in  order  that  the 
same  may  be  certified  to  our  said  surrogate,  that  he  may  proceed  in  the  prem- 
ises without  delay,  do  therefore  command  and  direct  you,  the  above  named 
G.  H.,  I.  J.  and  K.  L.,  forthwith  to  repair  to  the  late  dwelling  house  of  the 
said  deceased  in ,  or  elsewhere,  wheresoever  any  of  his  goods,  chat- 
tels or  credits  remain  or  be,  on  such  day  or  days,  with  continuation  and  proro- 
gation of  the  said  time  and  place  as  shall  be  needful ;  and  the  said  goods,  chattels 
and  credits  to  appraise,  and  a  value  thereon  set;  and  we  do  hereby  authorize 
you  for  that  purpose  to  demand  of  any  person  who  may  have  possession  of 

64 


506  APPENDIX  OF  FORMS. 

the  same,  inspection  of  the  obligations,  leases,  and  other  writings,  and  books 
and  papers  whatsoever  relative  to  the  personal  estate  of  the  said  deceased ; 
hereby  requiring  you,  or  any  two  of  you,  the  same  goods,  chattels  and  credits 
to  reduce  into  a  just  and  true  statement  and  account  with  your  appraisement 
of  each  and  every  article  thereof,  and  the  same,  so  made  and  valued,  to  return, 
under  your  hands  and  seals,  or  the  hands  and  seals  of  any  two  of  you,  into  the 
office  of  our  surrogate  of  the  county  of without  delay. 

In  testimony,  &c. 

Witness,  &c. 

No.  61. 

MONITION. 

[Ante,  p.  247.] 

The  People  of  the  state  of ,  to ,  [the  person  in  posses- 

[l.  s.]    sion  of  the  goods,]  and  to  all  others  to  whom  these  presents  shall 

come  or  may  concern,  greeting. 
"We  command  you  that  you  exhibit,  really  and  with  effect,  to  Gr.  H.,  I.  J. 
and  K.  L.,  who  have  been  duly  appointed  by  our  surrogate  of  the  county  of 
to  appraise  the  personal  estate  of ,  late  of ,  de- 
ceased, by  our  commission  for  that  purpose  issued  to  them,  all  and  singular  the 
goods,  chattels  and  credits  of  the  said  deceased,  and  also  the  bonds,  leases  and 
other  writings  and  papers  concerning  the  personal  estate  of  the  deceased, 
remaining  or  being  with  you  or  any  of  you,  in  order  that  the  same  may  be  ap- 
praised and  put  into  an  inventory ;  the  same  to  be  exhibited  to  the  said  com- 
missioners on  the day  of next,  at o'clock  in  the 

forenoon,  at  the  house  of ;  and  this  your  are  not  to  omit,  on  pain  of 

law  and  of  contempt. 
In  testimony,  &c. 
Witness,  &c. 

[Note.     The  inventory  returned  with  this  commission  is  certified  by  the 
appraisers,  but  not  by  the  executors  or  administrators.] 


No.  62. 

PROCEEDINGS  TO  COMPEL  THE  RETURN  OF  AN  INVENTORY  AFTER  THE 

APPOINTMENT  OF  EXECUTOR  OR  ADMINISTRATORS. 

[Ante,  pp.  262,  267.] 

PETITION. 

To  the  surrogate  of 

The  petition  of respectfully  showeth : 

That  letters  of  administration  of  the  goods,  chattels  and  credits  of , 

deceased,  were  on  or  about  the day granted  by  the  sur- 


APPENDIX  OP  FORMS.  507 

rogate  of to  A.  B.,  as  your  petitioner  is  informed  and  believes ;  that 

your  petitioner  is  a  creditor  of  the  said  deceased,  and  is  desirous  of  ascertain- 
ing the  nature  and  extent  of  his  estate;  that  although  more  than  three 
months  have  elapsed  since  the  granting  administration  as  aforesaid,  yet  no 
inventory  of  the  goods,  chattels  and  credits  of  the  said  deceased  has  yet  been 

returned  by  the  said 

Your  petitioner  therefore  prays  that  the  said may  be  required,  at 

a  short  day,  to  be  appointed  for  that  purpose,  to  appear  before  the  said  surro- 
gate, and  return  an  inventory  of  the  goods,  chattels  and  credits  of  the  said 
deceased,  or  show  reason  why  an  attachment  should  not  be  issued  against  him. 

(Signed.) 
Jurat,  as  in  No.  6. 


No.  63. 

ORDER  FOR  SUMMONS. 

[Ante,  pp.  262-267.] 


In  the  Matter  of  the  Estate  of 
,  late  of  ,  de- 
CEASED. 


>  Date. 


On  filing  the  petition  of ,  setting  forth  that  he  is  a  creditor  of  the 

deceased,  that  A.  B.,  administrator  of  the  goods,  chattels  and  credits  of  the 
said  deceased,  has  omitted  to  return  an  inventory  thereof,  and  praying  the 
aid  of  the  surrogate  in  the  premises :  it  is  therefore  ordered  that  a  summons 
issue,  requiring  the  said  administrator  to  appear  before  the  surrogate  at  his 

office  in on ,  then  and  there  to  return  an  inventory  of  the 

goods,  chattels  and  credits  of  the  said  deceased  according  to  law,  or  to  show 
cause  why  an  attachment  should  not  be  issued  against  him. 


No.  64. 
SUMMONS. 
The  People  of  the  state  of  New  York  to  A.  B.,  administrator  of  the  goods, 

[l.  s.]    chattels  and  credits  of ,  deceased. 

You  are  hereby  summoned  and  required  to  appear  before  the  surrogate  of 

the  county  of ,  at  the  surrogate's  office  in  said  county,  on  the 

day  of ,  at  ten  o'clock  in  the  forenoon,  then  and  there  to  return  an 

inventory  of  the  goods,  chattels  and  credits  of ,  deceased,  according 

to  law,  or  to  show  cause  why  an  attachment  should  not  issue  against  you. 
In  testimony,  &c. 
Witness,  &c. 


508  APPENDIX  OP  FORMS. 


No.  G5. 

ORDER  FOR  COMMITMENT,  AFTER  APPEARANCE,  ON  REFUSAL  TO  RETURN 

INVENTORY. 


[Aute,  pp.  2G2-2G7.] 


A.  P. 

vs.  j-  Date. 

C.  D. 


J 


The  above  named  defendant,  having  appeared  in  obedience  to  the  summons 
heretofore  issued  in  this  cause,  and  refused  to  return  an  inventory  of  the 

goods,  chattels  and  credits  of ,  deceased,  as  therein  required,  or  to 

show  any  sufficient  cause  to  the  contrary,  it  is  ordered,  adjudged  and  decreed, 
on  the  application  of  the  said  A.  B.,  that  the  said  C.  D.  be  committed  to  the 

common  jail  of  the  county  of ,  there  to  remain  until  he  shall  return 

such  inventory,  or  be  thence  discharged  by  due  course  of  law ;  and  it  is  further 
ordered  that  an  attachment  for  that  purpose  issue  against  him  directed  to  the 
sheriff  of  the  said  county,  returnable  on 


No.  66. 

ATTACHMENT. 

[Ante,  pp.  262  to  267.] 

[l.  s.]     The  People,  &c,  to  the  sheriff,  &c,  greeting. 

Whereas,  on  the   day  of ,  by  a  certain  decree  made  in 

our  surrogate's  court  of  our  county  of  Washington,  before  our  surrogate  of  the 

said  county,  at  the  town  of ,  in  a  certain  cause  depending  in  our  said 

court,  wherein  A.  B.  is  complainant  and  C.  D.  executor  of  the  last  will  and 

testament  of ,  late  of ,  deceased,  is  defendant,  it  was  ordered, 

adjudged  and  decreed  that  the  said be  committed  to  the  common 

jail  of  the  county  of ,  until  he  shall  return  to  our  surrogate's  court 

of  the  said  county,  an  inventory  of  the  goods,  chattels  and  credits  of , 

deceased,  or  be  thence  discharged  by  due  course  of  law,  as  by  the  said  decree, 
remaining  as  of  record  in  our  said  surrogate's  court,  doth  and  may  more  fully 

appear,  the  said having  refused  to  return  such  inventory,  although 

required  so  to  do  by  an  order  and  summons  of  our  said  surrogate's  court  : 
Sow.  therefore,  in  order  that  full  and  speedy  justice  maybe  done  in  the 

premises,  we  command  you,  that  you  take  the  body  of  the  said ,  if 

ho  shall  be  found  in  your  bailiwick,  and  him  safely  keep  in  your  custody  until 
he  shall  return  such  inventory,  or  until  he  shall  be  thence  discharged  by  due 
course  of  law ;  and  you  are  to  make  and  return  to  our  said  surrogate's  court 


APPENDIX  OF  FORMS.  509 

on ,  at  ,  a  certificate,  under  your  hand,  of  the  manner  in 

which  you  shall  have  executed  this  our  writ ;  and  have  you  then  there  this 
writ. 

In  testimony,  &c. 

"Witness,  &c. 

INDORSEMENT. 

Title. 

Attachment  against  C.  D,,  executor  &c.  of ,  deceased  intestate, 

for  not  returning  an  inventory  of  the  personal  property  of  the  deceased. 

(Signed,) 

J.  C.  H.,  Surrogate, 


A. 

B. 

vs. 

C. 

D. 

No.  67. 

[Ante,  pp.  2G3  to  267.] 

ORDER  FOR  REVOCATION  OF  LETTERS  TESTAMENTARY, 
[OR  ADMINISTRATION.] 


>  Date. 


An  attachment  having  heretofore  issued  against  the  said  C.  D.,  committing 
him  to  the  common  jail  of  the  said  county  until  he  shall  return  an  inventory  of 
the  goods,  chattels  and  credits  of ,  deceased,  and  it  appearing  by  the  cer- 
tificate of  the  sheriff  of  the  said  county,  indorsed  on  the  said  attachment,  that 
more  than  thirty  days  have  elapsed  since  the  said  C.  D.  was  committed  to  his 
custody,  and  the  said  C.  D.  having  still  neglected  to  return  such  inventory,  it 
is  ordered,  adjudged  and  decreed  that  the  letters  testamentary  heretofore 
granted  to  the  said ,  on  the  last  will  and  testament  of  the  said  de- 
ceased, be  revoked ;  and  it  is  further  ordered  that  a  revocation  thereof,  under 
the  hand  and  seal  of  office  of  the  said  surrogate  be  forthwith  issued. 


No.  68. 

REVOCATION. 

[Ante,  pp.  263  to  267.] 

To  C.  D.,  executor  of  the  last  will  and  testament  of ,  late  of , 

[l.  s.]     deceased,  and  to  all  others  whom  it  doth  or  may  concern,  greeting : 

Whereas,  on  the day  of ,  Letters  testamentary  were  duly 

issued  to  the  said ,  as  executor  of  the  last  will  and  testament  of  . .  .  ., 

late  of ,  deceased,  by  the  surrogate  of  the  county  of :    And 

whereas,  the  said neglected  to  return  an  inventory  of  the  goods, 

chattels  and  credits  of  the  said  deceased,  within  the  time  required  by  law,  and 


510  APPENDIX  OF  FORMS. 

a  summons  was  thereupon  issued  by  the  said  surrogate,  on  the  application 

of ,  requiring  the  said to  appear  before  the  said  surrogate 

and  return  such  inventory  on  a  day  now  past,  or  show  cause  why  an  attach- 
ment should  not  be  issued  against  him :  And  whereas,  it  has  been  sufficiently 
testified  to  our  said  surrogate  that  the  said  summons  could  not  be  served  person- 
ally on  the  said ,  by  reason  of  his  absconding  or  concealing  himself,  [or, 

and  whereas,  the  said  summons  was  duly  served  on  the  said ,  personally, 

and  the  said  omitted  to  return  such  inventory  by  the  day  therein 

appointed,  and  such  proceedings  were  thereupon  had  in  our  said  surrogate's 
court,  that  an  attachment  for  not  returning  such  inventory  was  duly  issued 

against  the  said to  the  sheriff  of  the  county  of ,  by  virtue 

of  which  the  said has  been  imprisoned  for  thirty  days  and  upwards 

in  the  common  jail  of  the  said  county,  during  all  which  time  he  has  neglected 
and  still  neglects  to  return  such  inventory :]  Now,  therefore,  be  it  known, 
that  in  pursuance  of  an  order  of  our  said  surrogate's  court,  and  of  the  statute 
in  such  case  made  and  provided,  we  have  revoked,  and  by  these  presents  do 
revoke  the  said  letters  testamentary,  and  all  power  thereby  granted  over  the 

estate  of  the  said  deceased ;  and  we  command  the  said ,  executor,  to 

desist  and  refrain  from  any  further  intermeddling  with  the  said  estate. 

In  testimony,  &c. 

Witness,  &c. 


No.  69. 
ORDER  TO  ADVERTISE  FOR  CLAIMS. 
[Ante,  p.  294.] 
Title.     (As  No.  8.)  Date. 

On  the  application  of ,  executor  of  the  last  will  and  testament 

of ,  late  of ,  deceased,  setting  forth  that  more  than  six 

months  have  elapsed  since  letters  testamentary  on  said  will  were  issued  to  him 
as  such  executor,  and  that  he  is  desirous  of  giving  such  notice  to  the  creditors 
of  the  deceased  to  present  their  claims,  as  is  authorized  by  law ;  it  is  ordered 
that  the  said  executor  insert  a  notice  once  in  each  week  for  six  months  in  the 
Saratoga  Republican  and  Sentinel,  a  newspaper  printed  in  the  county  of  Sara- 
toga, and  also  in  the  state  paper,  requiring  all  persons,  having  claims  against 
said  deceased,  to  present  the  same,  with  the  vouchers  thereof,  to  the  said  ex- 
ecutor, at  his  office  in ,  in  said  county,  on  or  before  the 

day  of next. 

NOTICE   TO   CREDITORS. 

Pursuant  to  an  order  of ,  surrogate  of  the  county  of ,  and 

according  to  the  statute  in  such  case  made  and  provided,  notice  is  hereby 
given  to  all  persons  having  claims  against ,  late  of ,  deceased, 


APPENDIX  OP  FORMS.  511 

that  they  are  required  to  exhibit  the  same  with  the  vouchers  thereof  to  the 

subscriber,  the  executor  of  the  last  will  and  testament  of  the  said  deceased,  at 

his  office  in ,  in  said  county,  on  or  before  the day  of 

next. 

Dated.  (Signed,) 

Executor. 

Note.— The  day  must  be  at  least  six  months  from  the  day  of  the  first  publi- 
cation of  the  notice. 


No.  70. 
AGREEMENT  TO  REFER  A  CLAIM. 
[Ante,  pp.  295,  296.] 
Whereas  John  Doe  has  lately  presented  a  claim  to  the  executors  of  the  last 

will  and  testament  of  Richard  Roe,  late  of ,  deceased,  the  testator,  for 

work,  labor  and  services  said  to  have  been  done  and  performed  by  the  said 
John  Doe  for  the  said  testator,  in  his  lifetime,  the  justice  of  which  claim  is 
doubted  by  the  said  executor.  It  is  thereupon  agreed,  in  conformity  to  the 
statute  in  such  case  provided,  by  and  between  the  said  John  Doe  and  the  said 

executor,  that  the  said  matter  in  controversy  be  referred  to , 

three  disinterested  persons,  as  referees,  to  hear  and  determine  upon  the  same. 

(Signed,) 
Dated,  &c.  By  both  parties. 

APPROVAL   OF    SURROGATE. 

I  hereby  approveof  the  three  persons  named  as  referees  in  the  foregoing 
agreement. 

Dated,  &c.  Surrogate. 


No.  71. 

APPLICATION  FOR  PROOF  OF  A  DEBT  DUE  FROM  THE  DECEASED 
TO  AN  EXECUTOR. 

[Laws  of  1837,  ch.  460,  §  37.     3  R.  S.  175,  5th  ed.     2  Bradf.  R.  116.     Ante, 

pp.  303,  317.] 

To  the  Surrogate  of  the  county  of 

The  petition  of ,  of ,  in  said  county,  respectfully  showeth  : 

That  he  is  the  executor  of  the  last  will  and  testament  of  . . . . ,  late  of  . . . . , 
deceased ;  that  the  said  will  was  admitted  to  probate  by  the  surrogate  of  said 

county,  on  the day  of last,  and  letters  testamentary  were 

issued  to  your  petitioner  on  the day  of last ;  and  your  pe>- 

titioner  has  made  and  returned  an  inventory  of  the  personal  estate  of  the  said 


512  APPENDIX  OF  FORMS. 

deceased,  as  the  law  directs,  by  which  it  appears  that  the  assets  of  the  said 
deceased,  applicable  to  the  payment  of  debts  and  legacies,  amount  to  about  the 
sum  of  ten  thousand  dollars :  That  at  the  time  of  the  death  of  the  said  testa- 
tor, he  was  indebted  to  your  petitioner  in  the  sum  of  five  hundred  dollars  on 

a  promissory  note  bearing  date  the day  of ,  in  the 

year ,  given  by  the  testator  to  your  petitioner  for  so  much  money 

lent  and  advanced  by  your  petitioner,  on  the  day  of  the  date  of  said  note  to 
the  said  deceased,  in  his  lifetime,  and  which  note  became  due  and  payable  on 

the day  of last,  together  with  the  interest  from  the  date 

of  the  date  of  the  said  note :     That  the  amount  now  due  due  on  the  said  note, 

of  principal  and  interest,  is :     That  no  payment  has  ever  been  made 

upon  the  said  note,  nor  are  there  any  offsets  against  said  note,  or  any  other 
defense  to  the  same,  to  the  knowledge  or  belief  of  your  petitioner. 

Your  petitioner  further  showeth :  That  he  has  advertised,  pursuant  to  the 
statute,  for  claims  against  said  estate  and  none  have  been  exhibited,  and  he 
believes  that  none  exist  save  the  one  in  favor  of  your  petitioner ;  and  your  pe- 
titioner saith is  a  co-executor  with  your  petitioner ;    that  the  only 

persons  entitled  to  share  in  the  distribution  of  the  personal  estate  of  the  said 

deceased,  are   ,  his  widow,  and ,  his  children,  all  of  whom 

reside  in ,  and  are  of  full  age,  and  to  whom  he  has  bequeathed,  in 

various  proportions,  all  his  property. 

Your  petitioner  therefore  pra}^s  that  the  debt  due  to  your  petitioner  may  be 
proved  to,  and  allowed  by  the  said  surrogate,  and  that  he  may  be  permitted 
to  retain,  out  of  the  assets  in  his  hands,  enough  to  pay  and  satisfy  the  said 
debt,  together  Avith  the  costs  of  this  proceeding ;  and  for  this  purpose,  he  prays 
that  a  citation  may  issue  out  of  and  under  the  seal  of  this  court,  pursuant  to  the 
statute,  to  be  directed  to  the  persons  above  named,  requiring  them  to  appear 
before  the  surrogate  and  attend  the  proof  of  the  said  debt,  at  a  time  and  place 
therein  to  be  appointed. 

And  your  petitioner  will  ever  pray. 

Dated.  (Signed.) 

Jurat  as  in  No.  6. 


No.  72. 

ORDER  FOR  CITATION. 

[Ante,  pp.  303,  317.] 


In  tiie  Matter  of  the  Estate  of  , 


1 

l 

. ,  }  Date. 

I 

J 


On  reading  and  filing  the  petition  of ,  executor  of  the  last  will  and 

testament  of ,  deceased,  setting  forth  that  he  has  a  claim  against  said 


APPENDIX  OP  FORMS.  513 

estate,  and  praying  for  a  citation  to  the  proper  persons  requiring  them  to 
attend  before  the  surrogate  on  a  day  to  be  appointed,  the  proof  of  the  said 
claim,  ordered  that  a  citation  issue  according  to  the  prayer  of  the  petition, 

returnable  at  the  surrogate's  office,  on  the day  of ,  at  ten 

o'clock  A.  M.  And  it  is  further  ordered  that  the  said  citation  be  served  on  the 
persons  to  whom  it  shall  be  directed,  at  least  fifteen  days  before  the  return 
day  thereof. 


No.  73. 

CITATION  ON  THE  ABOVE  ORDER. 

[Ante,  p.  103.] 

The  People,  &c,  to ,  co-executor,  and ,  widow,  and 

[l.  s.]    ,  children,  and  legatees,  named  in  the  last  will  and  testa- 
ment of ,  late  of ,  deceased,  send  greeting. 

You  and  each  of  you  are  hereby  cited  and  required  personally  to  be  and 

appear  before  our  surrogate  of  our  county  of ,  at  his  office  in 

in  said  county,  on  the day  of next,  at  ten  o'clock  A.  M., 

to  attend  the  proof  of  the  debt  or  claim  of ,  an  executor  named  in  the 

last  will  and  testament  of  the  said  deceased,  against  the  said  testator. 
In  testimony,  &c. 
Witness,  &c. 

(Signed,) 

Surrogate. 
[The  "proper  persons"  referred  to  in  the  statute,  upon  whom  this  citation 
should  be  served,  are  the  persons  who  might  be  prejudiced  by  the  proof  and 
allowance  of  the  claim.] 


No.  74. 

PETITION  OF  A  CREDITOR  FOR  AN  ORDER  THAT  AN  ADMINISTRATOR 

PAY  A  DEBT. 

[Ante,  pp.  300,  301.] 

To  the  surrogate  of  the  county  of 

The  petition  of ,  of ,  respectfully  showeth : 

That  your  petitioner  is  a  creditor  of ,  late  of ,  deceased, 

to  the  amount  of  $1000,  which  accrued  to  your  petitioner  for  so  much  money 
lent  and  advanced  by  your  petitioner  to  the  intestate  in  his  lifetime,  for  which 
he  gave  to  your  petitioner  his  promissory  note ;  [set  it  out,  and  describe  the 
general  nature  of  the  indebtedness;  that  no  payments  have  been  made,  and 

no  off-sets  exist  against  said  debt.]    That  on  or  about ,  one  A.  B., 

65 


514  APPENDIX  OP  FORMS. 

was  appointed  by  the  said  surrogate  administrator  of  all  and  singular  the 

goods,  chattels  and  credits  of  the  said  deceased,  and  on  or  about  the 

day  of made  and  returned  an  inventory  of  the  personal  estate  of  the 

said  deceased,  whereby  it  appears  that  assets  to  the  amount  of came 

to  the  hands  of  the  said  administrator,  and  which  are  amply  sufficient  to  pay 
and  satisfy  all  the  debts  of  the  said  deceased.  That  the  said  administrator,  in 
pursuance  of  the  statute,  issued  and  caused  to  be  published  a  notice  for  claims 
against  the  said  estate,  whereupon  your  petitioner,  within  the  time  limited 
for  that  purpose,  presented  to  the  said  administrator  his  aforesaid  claim,  with 
the  vouchers  thereof,  and  the  correctness  of  the  same  was  duly  assented  to  by 
the  said  administrator ;  that  your  petitioner,  after  the  expiration  of  one  year 
from  the  granting  of  said  letters,  demanded  payment  of  the  said  claim  from 
the  said  administrator,  and  he  has  hitherto  neglected  and  refused  to  pay  the 
same  or  any  part  thereof. 

You  petitioner  therefore  prays  that  a  decree  may  be  made,  pursuant  to  the 
statute  in  such  case  made  and  provided,  against  the  said  administrator,  for  the 
payment  of  the  said  claim  of  your  petitioner. 

And  your  petitioner  will  ever  pray,  &c. 

Dated.  (Signed.) 

Jurat,  as  in  No.  6. 

The  order  for  citation,  and  citation  to  show  cause  against  the  order,  can 
easily  be  framed. 


No.  75. 
PETITION  FOE,  ORDER  TO  ACCOUNT. 

[Under  2  R.  S.  92,  §  52,  and  L.  of  1837,  ch.  460,  §  76,  3  R.  S.  178,  5th  ed. 
Ante,  pp.  414,  415.] 

To  the  surrogate  of  the  county  of 

The  petition  of  John  Doe,  of ,  in  said  county,  respectfully  showeth : 

That  your  petitioner  is  a  legatee  named  in  the  last  will  and  testament  of 

,  late  of ,  deceased.     That  the  said  will  was  admitted  to 

probate  by  the  said  surrogate,  and  recorded  in  his  office  in on , 

and  that  letters  testamentary  thereof  were  duly  granted  by  said  surrogate  on 

to   ,  sole  executor  named  in  said  will,  and  more  than 

eighteen  months  have  expired  since  the  time  of  such  appointment.  That  the 
legacy  to  your  petitioner  is  in  the  following  terms :     [Here  set  it  out.] 

That  the  said  testator  left  a  large  personal  estate,  amounting  to  twenty 
thousand  dollars,  as  by  inventory  thereof,  filed  in  the  office  of  the  said  surro- 
gate, will  fully  appear ;  that  the  personal  estate  was  amply  sufficient  to  pay 
and  satisfy  all  the  debts,  funeral  charges  and  other  expenses  of  administration, 
and  all  the  legacies  bequeathed  in  and  by  the  said  will. 


APPENDIX  OF  FORMS.  515 

Your  petitioner  has  frequently  since  the  expiration  of  the  said  eighteen 
months  from  the  date  of  the  letters  testamentary,  applied  to  the  said  executor 
for  an  account  of  his  administration  in  this  matter,  and  for  payment  of  the  said 
legacy ;  but  the  said  executor  has  hitherto  neglected  and  refused  to  render 
such  account  or  to  pay  the  said  legacy. 

Your  petitioner  therefore  prays  that  the  aforesaid  executor  may  be  required 
to  pay  to  your  petitioner  the  amount  of  the  said  legacy,  and  that  an  order 
may  be  granted  requiring  the  said  executor,  at  a  certain  day  therein  to  be 
appointed,  personally  to  appear  in  this  court  and  render  an  account  of  his  pro- 
ceedings as  such  executor,  and  that  such  other  and  further,  proceedings  may 
be  had  thereon  as  may  be  requisite  to  enforce  the  payment  of  your  petitioner's 
legacy,  and  as  shall  be  just  and  equitable. 

And  your  petitioner  will  ever  pray,  &c. 

Dated.  (Signed.) 

Jurat,  as  in  No.  6. 


No.  76. 

ORDER  TO  ACCOUNT. 

[Ante,  p.  415.] 


In  the  Matter  of  the  Estate 

of   ,  late  of   ,      }- Date. 

deceased. 


On  reading  and  filing  the  petition  of  John  Doe,  one  of  the  legatees  named 

in  the  last  will  and  testament  of ,  late  of ,  deceased :  it  is 

ordered  that ,  the  executor  of  the  said  will,  personally  be  and  appear 

before  the  surrogate  of  the  county  of at  his  office  in ,  on, 

&c.  &c.  and  render  an  account  of  his  proceedings  as  such  executor,  or  show 
cause  why  an  attachment  should  not  issue  against  him. 

(Signed,) 

Surrogate. 

[See  as  to  the  mode  of  serving  this  order,  ante,  p.  415.    L.  of  1837,  ch.  460, 
§  76.    3  R.  S.  178,  179.     It  seems  that  no  citation  is  required  in  this  case.] 


No.  77. 

EXECUTOR'S  APPLICATION  FOR  FINAL  SETTLEMENT  OF  HIS  ACCOUNT. 

[Under  2  R.  S.  93,  §  60,  which  can  be  easily  modified  for  an  application  for  a 

voluntary  settlement,  under  2  R.  S.  95,  §  70.     Ante,  p.  423.] 

To  the  surrogate  of  the  county  of 

The  petition  of ,  executor  of  the  last  will  and  testament  of , 


516  APPENDIX  OP  FORMS. 

late  of ,  deceased,  respectfully  showeth :  that  letters  testamentary 

were  issued  to  him  as  such  executor  by  the  said  surrogate,  on  the 

day  of last ;  that  the  last  will  and  testament  of  the  said  deceased 

was  proved  and  recorded  in  the  office  of  the  said  surrogate  on  the 

day  of ;  that  eighteen  months  and  upwards  have  expired  since  the 

issuing  to  your  petitioner  of  the  said  letters  testamentary ;  that  your  peti- 
tioner, at  least  six  months  after  the  granting  of  said  Utters,  caused  the  notice  to  he 
inserted  once  a  week  for  six  months  in  such  newspapers  as  were  directed  by  the 
surrogate,  and  in  the  manner  required  by  law,  requiring  dtt persons  having  claims 
against  the  deceased  to  exhibit  the  same,  with  the  vouchers  thereof,  to  your  peti- 
tioner  at  his  place  of  residence,  at  a  day  now  past,  and  at  a  day  at  least  six 
months  from  the  day  of  the  first  publication  thereof* 

Your  petitioner  further  showeth  that  the  said  testator  disposed  of  his  estate 
by  his  said  will  in  the  following  manner,  [here  set  out  the  substance  of  the 
will,]  as  by  the  said  will  recorded  in  the  surrogate's  office,  reference  being 
thereto  had,  will  appear ;  and  your  petitioner  begs  leave  to  refer  to  the  same, 
or  the  probate  thereof,  if  it  shall  be  necessary. 

That  your  petitioner  has  been  required  by  the  surrogate,  on  the  application  of 
one  of  the  legatees,  [or  creditors,  as  the  case  may  be,]  to  render  an  account  of  his 
proceedings  as  such  executor,  and  that  he  desires  to  have  his  account  finally  settled. 

Your  petitioner  therefore  prays  that  a  citation  mag  be  issued  requiring  the  credi- 
tors, legatees  and  next  of  kin  of  the  said  deceased  to  appear  before  the  surrogate  of 
the  said  county,  on  some  day  therein  to  be  appointed,  to  attend  the  settlement  of 
such  accounts. 

And  your  petitioner  will  ever  pray,  &c. 

Dated.  (Signed.) 

Jurat,  as  in  No.  6. 

If  there  has  been  no  order  to  account,  omit  the  parts  in  italics,  and  substitute 
therefor  the  following : 

That  your  petitioner  is  prepared  to  render  a  final  account  of  the  proceedings 
as  such  executor.  He  therefore  prays  that  a  citation  may  issue,  out  of  and 
under  the  seal  of  this  court,  to  be  directed  to  all  persons  interested  in  the 
estate  of  the  said  deceased,  requiring  them  to  appear  on  a  certain  day  to  be 
therein  specified,  to  attend  the  final  settlement  of  the  accounts  of  your  peti- 
tioner as  such  executor  as  aforesaid. 

*  The  part  in  italics  should  be  omitted  if  the  executor  has  omitted  to  publish 
notice.  That  being  for  the  benefit  of  the  executor,  his  omission  does  not  prevent 
his  liability  to  be  called  on  to  account. 


APPENDIX  OP  FORMS.  517 

No.  78. 

ORDER  FOR  CITATION  TO  ATTEND  THE  FINAL  SETTLEMENT  IN 
THE  FIRST  CASE. 

[Ante,  p.  423.] 

In  tiie  Matter  of  the  Accounting 

ok ,  Executor  &c.  of ,  I  Date. 

LATE  OF ,  DECEASED. 

The  above  named ,  executor,  having  been  required  by  the  surrogate  to 

render  an  account  of  his  proceedings  as  such  executor,  and  more  than  eighteen 
months  having  expired  since  the  date  of  his  letters  testamentary,  and  being  desir- 
ous to  have  his  account  finally  settled;  wherefore,  on  reading  and  filing  his  peti- 
tion to  that  effect,  dated  this  day,  it  is  ordered  that  a  citation  issue  requiring 
the  creditors,  legatees  and  next  of  kin  of  the  said  deceased  to  appear  in  court 

on  the day  of next,  at  ten  o'clock  A.  M.,  then  and  there 

to  attend  the  final  settlement  of  the  account  aforesaid. 


No.  79. 

CITATION  THEREON. 

[Ante,  p.  423.] 

The  People,  &c,  to  the  creditors,  legatees  and  next  of  kin  of 

[l.  s.]    late  of ,  deceased,  send  greeting. 

You  and  each  of  you  are  hereby  cited  and  required  personally  to  be  and 

appear  before  our  surrogate  of  the  county  of ,  at  his  office  in , 

in  said  county,  on  the day  of ,  at  ten  o'clock  A.  M.,  then 

and  there  to  attend  the  final  settlement  of  the  account  of ,  as  the  ex- 
ecutor of  the  last  will  and  testament  of  the  said  deceased. 

In  testimony,  &c. 

Witness,  &c. 


No.  80. 
ORDER  FOR  CITATION  IN  THE  SECOND  CASE. 

[Ante,  p.  427.] 

The  same  as  No.  78,  except  that  the  recital,  instead  of  saying  that  he  has 

been  required  to  render  an  account,  will  simply  say,  "being  prepared  to  render 

an  account,"  &c.  and  instead  of  praying  a  citation  "  to  the  creditors,  legatees 

and  next  of  kin,"  will  pray  that  a  citation  issue  "  to  all  persons  interested  in 

the  estate  of ,  late  of ,  deceased;"  and  the  citation  will  be 

like  No.  79,  except  in  its  direction,  which  will  be  in  conformity  to  the  order. 


518  APPENDIX  OP  FORMS. 

No  81. 

ACCOUNT  RENDERED  BY  AN  EXECUTOR  OR  ADMINISTRATOR  ON  A 
FINAL  SETTLEMENT. 

[See  Dayton's  Surrogate,  App.  p.  49.     Ante,  pp.  427,  428.] 
Saratoga  Surrogate's  Court. 


In  the  Matter  of  the  accounting 

of    ,   Executor,   &c.   of 

,  late  of 

deceased. 


►  Account  of  proceedings. 


To  the  surrogate  of  the  county  of  Saratoga. 

I,  John  Doe,  of ,  in  said  county,  do  respectfully  render  the  follow- 
ing account  of  my  proceedings  as  executor  of  the  last  will  and  testament  of 
,  late  of ,  deceased,  for  final  settlement  and  allowance. 

Letters  testamentary  of  the  last  will  and  testament  of ,  late  of 

,  deceased,  were  issued  to  me  by  the  said  surrogate,  bearing  date  the 

day  of ,  I  having  first  taken  the  oath  of  office  as  such 

executor.     On  the day  of ,1  caused  an  inventory  of  the 

personal  estate  of  the  deceased  to  be  filed  in  the  office  of  the  said  surrogate, 
which  personal  estate  was  duly  appraised  by  the  appraisers  appointed  by  the 
surrogate  in  the  aggregate  at  §10,000. 

Schedule  A,  hereto  annexed,  contains  a  statement  of  all  the  property  con- 
tained in  said  inventory,  sold  by  me,  with  the  prices  and  manner  of  sale ; 
which  sales  were  fairly  made  by  me  at  the  best  prices  that  could  then  be  had 
with  due  diligence.  It  also  contains  a  statement  of  all  the  debts  due  the  said 
estate,  and  mentioned  in  said  inventory,  which  have  been  coUected,  and  also 
of  all  interest  for  money  received  by  me,  for  which  I  am  legally  ac- 
countable. 

Schedule  B,  hereto  annexed,  contains  a  statement  of  all  debts  in  said  inven- 
tory mentioned,  not  collected  or  collectable  by  me,  together  with  the  reasons 
why  the  same  have  not  been  collected  and  are  not  collectable ;  and  also  a  state- 
ment of  the  articles  of  personal  property  mentioned  in  said  inventory  unsold,  and 
the  reasons  of  the  same  being  unsold,  and  their  appraised  value ;  and  also  a  state- 
ment of  all  property  mentioned  therein,  lost  by  accident,  without  any  willful 
default  or  negligence,  the  cause  of  its  loss  and  appraised  value.  No  other 
assets  than  those  in  said  inventory,  as  herein  set  forth,  have  come  to  my 
possession  or  knowledge,  and  all  the  increase  or  decrease  in  the  value  of  any 
assets  of  said  deceased  is  allowed  or  charged  in  said  schedules  A  and  B. 

Schedule  C,  hereto  annexed,  contains  a  statement  of  all  moneys  paid  by  me 
for  funeral  and  other  necessary  expenses  for  said  estate,  together  with  the 
reasons  and  object  of  such  expenditure. 


APPENDIX  OF  FORMS.  519 

On  or  about  the day  of ,  in  the  year  18. . . .,  I  caused  a 

notice  for  claimants  to  present  their  claims  against  the  said  estate  to  me 
within  the  period  fixed  by  law,  and  at  a  place  therein  appointed,  to  be  pub- 
lished in  two  newspapers,  according  to  law,  for  six  months,  pursuant  to  an 

order  of  the  surrogate  of  the  county  of ;  to  which  order,  notice  and 

due  proof  of  publication,  herewith  tiled,  I  refer  as  part  of  this  account. 

Schedule  D,  hereto  annexed,  contains  a  statement  of  all  the  claims  of  cred- 
itors presented  to  and  allowed  by  me,  or  disputed  by  me,  and  for  which  a 
judgment  or  decree  has  been  rendered  against  me,  together  with  the  names 
of  the  claimants,  the  general  nature  of  the  claim,  the  amount  and  the  time  of 
the  rendition  of  the  judgment ;  it  also  contains  a  statement  of  all  moneys  paid 
by  me  to  the  creditors  of  the  deceased,  and  their  names  and  the  time  of  such 
payment. 

Schedule  E,  hereto  annexed,  contains  a  statement  of  all  moneys  paid  to  the 
legatees,  widow  or  next  of  kin  of  the  deceased. 

Schedule  F,  hereto  annexed,  contains  the  names  of  all  persons  entitled,  as 
widow,  legatee  or  next  of  kin  of  the  deceased,  to  a  share  of  his  estate,  with 
their  places  of  residence,  degree  of  relationship,  and  a  statement  as  to  which 
of  them  are  minors,  and  whether  they  have  any  general  guardian,  and  if  so, 
their  names  and  places  of  residence,  to  the  best  of  my  knowledge,  information 
and  belief. 

Schedule  G-,  hereto  annexed,  contains  a  statement  of  all  other  facts  affecting 
my  administration  of  said  estate,  my  rights  and  those  of  others  interested 
therein. 

I  charge  myself: 

Amount,  as  per  inventory, $00  00 

Increase  as  shown  by  schedule  A, 00  00 

I  credit  myself: 

Amount  of  losses  on  sales,  as  per  schedule  D, 00  00 

"        debts  not  collected,  as  per  schedule  D, 00  00 

"         schedule  C,   00  00 

"        D, 00  00 

"        E, 00  00 

Leaving  a  balance  of §00  00 

to  be  distributed  to  those  entitled  thereto,  subject  to  the  deductions  of  the 
amount  of  my  commissions  and  the  expenses  of  this  accounting.  The  said 
several  schedules,  which  are  signed  by  me,  are  part  of  this  account. 

(Signed,) 

John  Doe,  Executor. 

OATn  of  executor. 

County  of ,  ss.  I,  John  Doe,  executor  of  the  last  will  and  testa- 
ment of ,  late  of ,  deceased,  being  duly  sworn,  say  that  the 


520  APPENDIX  OF  FORMS. 

charges  made  in  the  foregoing  account  of  proceedings,  and  schedules  annexed, 
for  moneys  paid  by  me  to  creditors,  legatees  and  next  of  kin,  and  for  neces- 
sary expenses,  are  correct ;  that  I  have  been  charged  therein  all  the  interest 
for  moneys  received  by  me  and  embraced  in  said  account,  for  which  I  am 
legally  accountable ;  that  the  moneys  stated  in  said  account  as  collected  were 
all  that  were  collectable,  according  to  the  best  of  my  knowledge,  information 
and  belief,  on  the  debts  stated  in  such  account  at  the  time  of  this  settlement 
thereof;  that  the  allowances  in  said  account  for  the  decrease  in  the  value  of  any 
assets,  and  the  charges  therein  for  the  increase  in  such  value,  are  correctly 
made ;  and  that  I  do  not  know  of  any  error  in  said  account,  or  any  thing  omitted 
therefrom,  which  may  in  any  wise  prejudice  the  rights  of  any  party  interested 
in  said  estate.  And  I  further  say  that  the  sums  under  twenty  dollars  charged 
in  the  said  account,  for  which  no  vouchers  or  other  evidences  of  payment  are 
produced,  or  for  which  I  may  not  be  able  to  produce  vouchers  or  other  evi- 
dences of  payment,  bave  actuaUy  been  paid  and  disbursed  by  me  as  charged. 

John  Doe. 

Sworn,  this day  of ,  ) 

18 ,  before  me,  ) 

,  Surrogate. 


No.  82. 
ORDER  REFERRING  ACCOUNT  TO  AN  AUDITOR. 
[Ante,  p.  432.] 
Title.     (As  usual.)  Date. 

John  Doe,  the  executor  of  the  last  will  and  testament  of  .... ,  late  of , 

deceased,  having  rendered  his  account  of  his  proceedings,  as  such  executor,  to 
the  surrogate,  it  is  ordered  that  the  said  account  and  all  the  vouchers  thereof 
and  testimony  taken  by  the  surrogate,  in  relation  thereto,  be  referred  to  Rich- 
ard Roe,  Esq.,  of ,  as  auditor,  to  examine  and  report  thereon. 

And  it  is  further  ordered  that  the  first  hearing  of  this  matter  before  the  said 

auditor  take  place  at ,  on ,  and  that  the  said  auditor  bring 

in  his  report  before  the  surrogate  on  the day  of next,  at  10 

o'clock  A.  M.,  which  time  is  appointed  for  the  hearing  of  the  parties  hereto,  at 
the  surrogate's  office,  on  the  confirmation  of  the  report  of  the  said  auditor. 

[N.  B.  By  the  act  of  1859,  page  569,  amending  the  36th  section  2  R.  S.  88, 
the  accounts  may  be  referred  to  one  disinterested  person  as  auditor ;  and  it  is 
not  necessary  that  it  should  be  referred  to  three,  as  formerly.] 


APPENDIX  OF  FORMS.  521 

No.  82.(o) 
AUDITOR'S  REPORT. 
[Ante,  p.  433.1 
Surrogate's  Court — Saratoga  County. 

In  the  Matter  of  the  Accounting 
of  John  Doe,  Executor  of  the 
last    Will    and     Testament    of 

,   late   of , 

deceased. 

To  the  surrogate  of  the  county  of  Saratoga. 

I,  the  undersigned,  auditor  duly  appointed  by  the  said  surrogate  to  examine 
the  accounts  of  John  Doe,  executor  above  named,  and  to  make  a  report  thereon 
subject  to  the  confirmation  of  the  surrogate,  do  respectfully  report : 

That  I  have  been  attended  by  the  said  executor,  and  by  all  the  parties  inter- 
ested in  the  said  accounting,  and  have  examined  the  said  accounts,  the  vouch- 
ers thereof,  and  the  testimony  in  relation  thereto,  and  have  heard  the  argu- 
ments of  the  respective  parties,  and  I  do  find  that  the  statement  of  the  said 
accounts  by  the  said  executor  presented  to  the  said  surrogate  and  referred  to 
me,  is  in  all  respects  just  and  correct. 

All  which  is  respectfully  submitted. 

Dated-  (Signed,)  Auditor. 


No.  83. 

ORDER  CONFIRMING  REPORT. 

[Ante,  p.  433.] 
Title.     (As  above.) 

On  reading  and  filing  the  report  of ,  auditor,  appointed  by  the  sur- 
rogate in  this  matter,  whereby  he  finds  the  account  of  the  executor,  rendered 
in  this  case,  in  all  respects  correct,  and  the  parties  having  been  heard  before 
the  surrogate,  after  the  coming  in  of  the  said  report,  and  the  said  report  ap- 
pearing to  the  said  surrogate  to  be  in  all  things  correct,  it  is  ordered  that  the 
same  be  and  it  is  hereby  confirmed,  and  the  accounts  of  the  said  executor  are 
hereby  finally  settled  and  allowed. 

The  following  is  a  summary  statement  of  the  said  accounts  as  settled  and 
allowed,  made  and  recorded,  pursuant  to  the  statute,  viz : 

[Here  set  out  the  same.] 

Note. — If  the  auditor  finds  the  account  of  the  executor  incorrect,  he  should, 
if  it  be  necessary,  restate  the  whole  account  in  such  a  manner  as  justice  may 
require.  The  order  of  confirmation  will  be  the  basis  of  the  decree,  and  the 
report  of  the  auditor  the  substance  of  the  statement  which  the  statute  requires 
to  be  referred  to  in  the  decree.  (Laws  of  1837,  ch.  460.  §  2.  3  P.  S.  3G5 
5th  ed.) 

66 


522  APPENDIX  OF  FORMS. 

No.  84. 

PROCEEDINGS  FOR  THE  SALE,  LEASING  OR  MORTGAGING  REAL  ESTATE 
FOR  THE  PAYMENT  OF  DEBTS. 

[Ante,  p.  30G  et  seq.] 

FORM    OF   PETITION   BY   AN   EXECUTOR.       [Ante,    309.] 

To  the  surrogate  of  the  county  of 

The  petition  of  A.  B.,  executor  of  the  last  will  and  testament  of  C.  D.,  late 
of  the  town  of ,  in  the  county  of ,  and  state  of ,  de- 
ceased, respectfully  showeth : 

That  letters  testamentary  on  the  said  will  were  issued  to  your  petitioner  by 

the  surrogate  of  the  said  county  of ,  on  the day  of , 

1859,  and  your  petitioner,  shortly  afterwards,  caused  an  inventory  of  the  per- 
sonal estate  of  the  said  deceased  to  be  duly  made,  according  to  law,  and  which 

was  duly  filed  in  the  office  of  the  said  surrogate,  on  the day  of , 

as  appears  by  the  certificate  of  the  said  surrogate,  hereto  annexed :  That  the 
amount  of  personal  property  which  has  come  to  the  hands  of  your  petitioner 

is ,  and  the  same  has  been  applied  by  your  petitioner  in  the  payment 

of  funeral  charges,  the  necessary  expenses  of  administering  the  said  estate,  and 
in  payment  of  the  debts  of  the  said  testator  as  far  as  the  same  would  extend : 
That  the  valid  and  subsisting  debts  outstanding  against  the  said  estate,  as  near 

as  can  be  ascertained,  amount  to  the  sum  of :     That  the  said  debts 

are  not  secured  by  judgment,  mortgage  or  other  charge  on  the  real  estate  of 
the  said  deceased  or  any  part  thereof:  [or,  that  the  said  debts  were  secured 

by  a  charge  in  the  testator's  will  on  a  certain  lot  known  as  lot  No , 

hi ,  [describe  it,]  which  your  petitioner  was  authorized  to  sell  for  that 

purpose ;  that  your  petitioner  has,  in  pursuance  of  the  said  power,  sold  the 

said  lot,  for  the  sum  of ,  being  the  full  value  thereof,  and  applied  the 

said  money,  in  satisfaction  of  said  debts,  as  far  as  it  would  extend,  and  that 
there'still  remains  due  and  outstanding  against  the  said  estate,  the  sum  of  . . . ., 
not  secured  by  judgment,  mortgage  or  other  charge  upon  the  real  estate  of  the 
deceased,  or  any  part  thereof:] 

That  the  said  deceased  died  seised,  as  is  alleged,  of  the  following  described 
pieces  or  parcels  of  land,  to  wit :  a  certain  piece  or  parcel  of  land  situate  in 

S ,  in  the  county  of ,  and  bounded  as  follows,  (describe  it,) 

containing acres  of  land,  and  is  of  the  value  of ,  in  the  judg- 
ment of  your  petitioner,  and  is  now  in  the  occupation  of  G.  H. ;  also  another 

lot,  situate  &c,  [as  before.]     That  J.  I.,  K.  L.,  &c,  of  the  town  of , 

in  the  county  of ,  are  devisees  named  in  the  said  will,  and  are  of  the 

age  of  twenty-one  years  and  upwards,  as  your  petitioner  is  informed  and  be- 
lieves:  That  N.  0.,  of  the  town  of ,  in  the  said  county,  is  also  a  devisee 

named  in  the  said  will — is  a  minor  under  the  age  of  twenty-one  years,  as  your 
petitioner  is  informed  and  believes :  That  I.  T.  and  K.  T.,  of,  <fec,  are  heirs 
of  the  said  deceased,  of  the  age  of  twenty-one  years  and  upwards,  and  that 


APPENDIX  OP  FORMS.  523 

N.  0.,  of,  &c,  is  also  an  heir  of  the  said  deceased,  and  a  minor  under  the  age 
of  twenty-one  years:  That  the  said  deceased  left  a  widow,  whose  name 
is ,  and  who  resides  in 

Your  petitioner  therefore  prays  that  some  disinterested  freeholder  may  be 
appointed  guardian  for  the  above  named  minors,  for  the  sole  purpose  of  appear- 
ing for  them  and  taking  care  of  their  interest  in  the  proceeding ;  and  that 
authority  may  be  granted  to  your  petitioner,  pursuant  to  the  statute  in  such 
case  made  and  provided,  to  mortgage,  lease  or  sell  so  much  of  the  real  estate, 
whereof  the  said  deceased  died  seised,  as  shall  be  necessary  to  pay  his  debts 
still  remaining  due  and  unpaid,  together  with  the  costs  of  this  proceeding.  And 
your  petitioner  states  that,  in  his  judgment,  a  sale  of  said  premises  would  be  more 
advantageous  to  said  estate  than  a  lease  or  mortgage. 

And  your  petitioner  will  ever  pray,  &c. 

Jurat  as  in  No.  6. 

[If  the  intention  be  to  apply  for  authority  to  lease  or  mortgage  the  estate, 
the  petition  should  be  varied  accordingly.] 


No.  85. 

NOTICE  TO  MINOR  HEIR  OR  DEVISEE  IN  THE  COUNTY. 

[Ante,  p.  310.] 

To ,  minor  devisee  [or  heir,  as  the  case  may  be,]  of  A.  B.,  late  of 

the  town  of ,  in  the  county  of ,  deceased : 

Take  notice,  that  an  application  will  be  made  to  the  surrogate  of  the  county 

of ,  at  his  office  in ,  in  said  county,  on  the day 

of ,  at  ten  o'clock  A.  M.,  for  the  appointment  of  a  guardian  for  the 

above  named  minors,  respectively,  for  the  sole  purpose  of  appearing  for  them 
and  taking  care  of  their  interest  in  an  intended  application  to  the  said  surro- 
gate for  authority  to  lease,  mortgage  or  sell  the  real  estate  of  the  said  deceased 
to  pay  his  debts.  Yours,  &c. 

Dated.  M.  N.,  Executor. 


No.  86. 


ORDER  FOR  THE  APPOINTMENT  OF  GUARDIAN  FOR  MINOR,  ENTERED 
IN  BOOK  FOR  SALES  OF  REAL  ESTATE. 

[Ante,  p.  310.] 


;i 


In  the  Matter  of  the  real  estate  ( 
of  ,  late  of ,  j>  May  1,  1859. 

deceased. 


On  reading  and  filing  the  affidavit  of  A.  B.,  setting  forth  that  he  did,  on  the 
day  of  April  last,  personally  serve and  j and , 


524  APPENDIX  OF  FORMS. 

minors  and  devisees  named  in  the  last  will  and  testament  of  the  said  deceased, 
[or  heirs  at  law  of  the  said  deceased,]  with  a  notice,  in  writing,  that  an  appli- 
cation would  this  day  be  made  to  the  surrogate  of  said  county,  at  , 

for  the  appointment  of  a  guardian  ad  litem  for  the  said  minors, , 

respectively,  for  the  sole  purpose  of  appearing  for  and  taking  care  of  their 
interest  in  the  proceedings  intended  to  be  instituted  before  the  said  surrogate, 
for  authority  to  lease,  mortgage  or  sell  the  real  estate  of  the  said  deceased,  and 
the  said  surrogate  having  heard  the  allegations  of  the  parties  and  duly  consid- 
ered the  same,  it  is  ordered  that ,  of ,  be  appointed  guardian 

of  the  said  minors,  respectively,  for  the  purpose  aforesaid. 


No.  87. 

ORDER  TO  SHOW  CAUSE. 

[Ante,  p.  312.] 


In  the  Matter  of  the  real  estate 

of ,  late  of ,  ^  Date. 

deceased. 


On  reading  and  riling  the  petition  of  A.  B.,  executor  of  the  last  will  and  tes- 
tament of  the  said  deceased,  praying  that  authority  may  be  granted  him  to 
mortgage,  lease  or  sell  the  real  estate  of  the  deceased,  for  the  payment  of  his 
debts,  it  is  ordered  that  all  persons  interested  in  the  said  estate  appear  before 

the  surrogate  of  the  county  of ,  at ,  on  the day  of 

,  at  10  o'clock  A.  M.,  to  show  cause  why  authority  should  not  be  given 

to  the  said  executor  to  mortgage,  lease  or  sell  so  much  of  the  real  estate  of  the 
said  deceased  as  will  be  necessary  to  pay  his  debts ;  and  it  is  further  ordered 
that  all  persons,  having  demands  against  the  said  estate,  exhibit  and  prove  the 
same  at  the  time  and  place  aforesaid ;  and  it  is  further  ordered  that  a  copy  of 

this  order  be  published weeks,  successively,  in ,  and  be 

otherwise  served,  as  the  law  directs. 


No.  88. 
ORDER  FOR  LEAVE  TO  PRESENT  CLAIMS,  AND  FOR  EXECUTORS  TO 
RENDER  ACCOUNT,  Ac. 

[Ante,  p.  312.] 


In  the  Matter  of  the  real  estate 

of ,  late  of ,  \  Date. 

deceased. 


On  reading  and  filing  an  affidavit  of  the  due  publication  in for 

weeks  successively,  of  a  copy  of  the  order  heretofore  granted  in  this 


APPENDIX  OF  FORMS.  525 

matter,  bearing  date  the ,  and  also  an  affidavit  of  the  due  service  of 

a  copy  of  said  order  on  the  widow,  &c.  [stating  the  persons  on  whom  service 
is  required  to  be  made  by  name,]  in  the  manner  required  by  law ;  it  is  ordered 
that  leave  be  given  to  all  persons  interested  in  the  estate  of  the  deceased  to 
show  cause,  if  any  they  have,  why  authority  should  not  be  given  to  the  exe- 
cutors of  the  last  will  and  testament  of  the  deceased  to  sell  the  real  estate  of 
the  deceased  for  the  payment  of  his  debts ;  that  the  said  executor  render  an 
account  of  the  administration  of  the  personal  ^estate  of  the  said  deceased ;  and 
that  all  persons  having  claims  against  said  estate  have  leave  to  exhibit  and 
prove  them  as  the  law  directs. 


No.  89. 
ORDER  SETTLING  ACCOUNTS  AND  ALLOWING  CLAIMS. 

[Ante,  pp.  312-319.] 


In  the  Matter  of  the  real  estate  , 

}■  Date. 
of ,  deceased. 


This  cause  having  been  brought  to  a  hearing  on  the day  of , 

and  stood  over  for  consideration  until  this  day,  and  this  court  having  fully 

examined  the  accounts  and  vouchers  of ,  executor,  &c.  &c.  and  duly 

considered  the  same,  it  is  ordered,  adjudged  and  decreed,  and  this  court,  by 
virtue  of  the  power  vested  in  it,  doth  order,  adjudge  and  decree,  that  the 
estate  of  the  said  deceased  be  credited  in  account  with  the  said  executor  with 
the  sum  of  $900.00,  being  the  amount  of  the  inventory  of  the  goods,  chattels 
and  credits  of  the  said  deceased  returned  to  this  office  by  the  said  executor, 
and  with  the  sum  of  $100.00,  being  for  gains  on  the  said  inventory  arising 
from  the  interest  of  money  and  property  discovered  since  the  said  inventory 
was  returned  as  aforesaid,  as  per  schedule  A  on  file ;  and  be  charged  with  the 
following  sums,  duly  proved  and  substantiated,  to  wit :  with  the  sum  of  $20.00 
for  the  surrogate's  fees  on  admitting  the  last  will  and  testament  of  the  deceased 
to  probate,  and  receiving  the  return  of  inventory ;  with  the  sum  of  $80.00  for 
sundry  expenses  attending  the  administration  of  said  estate,  as  per  schedule 
B ;  with  the  sum  of  $100.00  for  loss  on  the  said  inventory,  as  per  schedule  C ; 
and  with  the  sum  of  $800.00  for  so  much  money  paid  to  divers  creditors  of  the 
estate  of  the  deceased  on  account  of  their  said  debts,  as  per  schedule  D.  And 
it  is  further  ordered  that  an  account  current  of  the  said  accounting  be  entered 
in  this  book  at  large. 

And  whereas,  on  the day  of ,  sundry  claims  against  the 

said  estate  were  exhibited  to  this  court,  and  this  court  having  heard  the  proofs 
and  allegations  in  relation  thereto,  and  duly  considered  the  same,  it  is  there- 
fore further  ordered,  adjudged  and  decreed,  and  this  court,  by  virtue  of  the 


526 


APPENDIX  OF  FORMS. 


power  vested  in  it,  doth  order,  adjudge  and  decree,  that  there  is  due  and  owing 
from  the  said  estate  to  the  several  persons  hereinafter  named  in  the  schedule 
hereto  subjoined,  the  sum  of  money  set  opposite  to  their  names  respectively, 
over  and  above  all  discounts,  and  that  the  said  respective  sums  are  valid  and 
subsisting  debts  against  the  said  estate,  not  secured  by  judgment,  mortgage, 
or  other  lien  against  the  real  estate  of  the  said  deceased.  [If  any  debt  was 
originally  secured  by  a  lien  on  any  of  the  land,  &c.  state  the  fact,  and  that  the 
remedy  of  the  creditors  against  said  land  had  been  exhausted.]  And  whereas 
one  John  Doe  exhibited  to  this  court,  on  the  day  and  year 
aforesaid,  a  certain  claim  against  the  said  estate,  for  the 
amount  of  a  certain  promissory  note,  alleged  to  have  been  made  by  the  deceased 
in  his  lifetime,  bearing  date  the  1st  June,  1840,  for  the  payment  to  the  said  John 
Doe  of  $100  one  day  after  the  date  thereof,  with  interest;  and  whereas  one 

,  an  heir  of  the  said  deceased,  did  allege  before  this  court  that  the 

said  pretended  claim  of  the  said  John  Doe  did  not  accrue  at  any  time  against 
the  said  deceased  within  six  years  next  before  the  death  of  the  said  deceased, 
and  did  thereupon  insist  that  the  statute  of  limitations  might  be  deemed  a  bar 
to  the  said  claim ;  and  whereas,  after  hearing  the  proofs  and  allegations  of  the 
said  parties,  this  court  is  satisfied  that  the  said  supposed  demand  of  the  said 
John  Doe  did  not  accrue  at  any  time  within  six  years  next  before  the  death 
of  the  said  deceased :  it  is  therefore  ordered,  adjudged  and  decreed,  and  this 
court,  by  virtue  of  the  power  vested  in  it,  doth  order,  adjudge  and  decree, 
that  the  said  pretended  claim  of  the  said  John  Doe  is  not  a  valid  and  subsist- 
ing claim  against  the  estate  of  the  said  deceased,  and  that  the  same  be  rejected. 

Schedule  of  the  claims  against  tlie  estate  of ,  deceased,  adjudged  to  he 

valid  and  subsisting,  and  referred  to  in  the  foregoing  order. 

Richard  Roe, $500  00 

John  Stiles, 675  45 

James  Jackson, 983  21 


$2158  66 


The  Estate  of in  account  with  A.  B.,  executor  of ,  entered 

in  pursuance  of  the  foregoing  order. 
Dr.  Cr. 


1859 


To  cash  paid  surrogate, 
"  expenses  of  adminis- 
tration, schedule  B, 
"  loss  on    inventory, 

schedule  C,     -     - 
"  cash  paid  to  credit- 
ors of  estate  on  ac- 
count of  debts,  sche- 
dule D,      -      -     - 


20 

oo1 

1859 

80 

00 

100 

00 

800 

00 

$1000 

00 

By  amount  of  inven- 
tory of  the  estate 
of  the  deceased, 
gain  on  inventory 
as  per  schedule  A. 


900 


100 


$1000  00 


APPENDIX  OF  FORMS.  527 

No.  90. 

ORDER  OF  SALE. 

[Ante,  pp.  320,  327.] 


In  the  matter  of  the  real  estate 
of ,  late  of ,  de- 
CEASED. 


Date. 


Whereas ,  executor  of  the  last  will  and  testament  of ,  the 

above  named ,  deceased,  lately  presented  his  petition  to  the  surro- 
gate of  the  county  of  Washington,  for  authority  to  mortgage,  lease  or  sell  so 
much  of  the  real  estate  of  the  said  deceased,  as  would  be  necessary  to  pay  the 
debts  of  the  said  deceased,  and  such  proceedings  have  been  had  thereon,  pur- 
suant to  the  statutes  in  such  case  made  and  provided,  that  the  said  surrogate 
is  satisfied,  upon  due  examination  in  the  premises,  that  the  said  executor  has 
fully  complied  with  the  several  provisions  of  the  said  statutes,  and  that  the 
debts  outstanding  against  the  deceased,  as  far  as  the  same  can  be  ascertained, 
and  which  are  valid  and  subsisting,  and  are  not  secured  by  judgment,  mort- 
gage, or  other  lien,  on  the  real  estate  of  the  said  deceased,  amount  to  the  sum 
of  $2158.66;  and  that  the  personal  estate  of  the  said  deceased  is  insufficient 
to  pay  his  debts;  and  that  the  whole  of  the  said  personal  estate,  which  could 
have  been  applied  to  the  payment  of  the  debts  of  the  said  deceased,  has  been 
duly  applied  for  that  purpose ;  and  whereas  it  has  been  made  to  appear  to  the 
said  surrogate,  that  the  moneys  required  to  be  raised  by  the  said  executor, 
cannot  be  raised  by  mortgage,  or  lease,  advantageously  to  the  said  estate,  and 
the  said  executor  has,  in  conjunction  with  two  sureties,  executed  a  bond  to 
the  people  of  this  state,  in  the  manner  required  by  law,  which  is  duly  ac- 
knowledged, approved  and  filed ;t  it  is  therefore  ordered,  adjudged  and  de- 
creed, and  this  court,  by  virtue  of  the  power  vested  in  it,  doth  order,  adjudge 
and  decree,  that  the  said  executor  sell  at  public  auction  or  vendue,  the  follow- 
ing described  real  estate  of  the  said  deceased,  to  wit :  [here  describe  the  sev- 
eral parcels  to  be  sold.]  And  it  is  further  ordered,  that  on  the  said  sale  the  said 
0  h  l  th"  executor  be  authorized  to  give  such  length  of  credit,  not  ex- 
should  be  omitted,      ceeding  three  years,  for  not  more  than  three-fourths  of  the  pur- 

credit  sale"  be  'con-     c^ase  mo,mJi  M  s^ia^  seem  oesi  calculated  to   produce  the 

formable  to  the  or-       highest  price,  and  shall  secure  the  moneys  for  which  credit 

may  be  given,  by  a  bond  of  the  pur -chaser,  and  by  a  mortgage 

Inserted  only  when      0f  the  premises  sold.     And  it  is  further  ordered,  that  the  sev- 

necessary. 

eral  tracts  of  land  hereinbefore  described,  be  sold  in  the  fol- 
lowing order,  to  wit :  [here  describe  the  order,  stating  which 

tract  shall  be  sold  first,  according  to  §  20,  2  R.  S.  103.] 

And  it  is  further  ordered,  that  before  any  deed  or  deeds  of  the  premises 

sold  are  executed,  the  said  executor  make  a  return  of  the  proceedings  had  on 


528  APPENDIX  OF  FORMS. 

this  order  to  the  said  surrogate,  to  the  end  that  the  said  surrogate  may  exam- 
ine the  said  proceedings,  and  the  fairness  and  legality  of  the  said  sale. 

SPECIAL   ORDER,    &C.  [pp.  320,  327.] 

Same  as  last  to  t,  and  then  as  follows : 

And  whereas  it  manifestly  appears  that  the  said  real  estate  of  the  said  de- 
ceased is  so  situated  that  a  part  thereof  cannot  be  sold  without  great  preju- 
dice to  the  heirs  [or  devisees,  as  the  case  may  be]  of  the  said  deceased,  it  is 
therefore  ordered,  &c,  as  in  last  precedent. 


No.  91. 
REPORT  OF  SALE. 

[Ante,  p.  327.] 
Oneida  Surrogate's  Court. 

IN  TnE  MATTER  OF  THE  REAL  ESTATE 
OF ,  LATE  OF ,  DE- 
CEASED. 

In  pursuance  of  a  decretal  order  of  the  surrogate  of  the  county  of 

aforesaid,  bearing  date  the day  of ,1,  the  subscriber, 

executor  of  the  last  will  and  testament  of  the  above  named  deceased,  did, 

on  the day  of ,  at  the  house  of ,  in 

said  county,  between  the  hours  of  9  o'clock  in  the  forenoon,  and  the  set- 
ting of  the  sun  on  that  day,  sell  at  public  vendue,  the  whole  of  the  premises 

in  the  said  order  described,  to  John  Styles,  for  the  sum  of , 

which  was  the  highest  sum  bid  for  the  same.  And  I  do  further  return,  that  be- 
fore the  said  sale,  I  caused  notice  of  the  time  and  place  thereof  to  be  regularly 
published,  once  a  week  for  six  weeks,  successively  in  the ,  a  news- 
paper printed  in  said  county,  and  a  like  notice  to  be  posted  for  six  weeks  at 

three  of  the  most  public  places  in  the  the  said  town  of ;  and  further, 

that  the  said  sale  was  legally  made  and  fairly  conducted,  and  that  a  greater 
sum  could  not  be  obtained,  on  said  sale,  for  the  premises  aforesaid,  than  above 

stated.     Dated. 

A.  B. 

County  of ,  ss.     A.  B.,  executor,   &c,  above  named,  being  duly 

sworn,  saith  that  the  facts  set  forth  in  the  foregoing  return  are  true,  according 
to  the  best  of  his  knowledge  and  behef. 

Sworn,  &c.  A.  B. 


APPENDIX  OP  FORMS.  529 

No.  92. 

ORDER  CONFIRMING  SALE. 

[Page  327.] 


In  the  Matter  of  tiie  real  estate  | 

Dated. 


./ 


On  reading  and  filing  the  return  of ,  executor  of  the  last  will  and 

testament  of  the  above  deceased,  and  sundry  affidavits  accompanying  the  same, 

by  which  it  appears  that  the  said  executor  did,  on  the  .......  day  of , 

in  obedience  to  the  order  of  this  court,  in  the  above  matter,  bearing  date  the 

day  of last,  and  in  pursuance  of  the  statute  in  such  case 

made  and  provided,  sell,  at  public  auction,  to  one  John  Styles,  for  the  sum  of 
$1000,  the  lands  and  tenements  in  the  said  order  mentioned,  upon  the  terms 
particularly  mentioned  in  said  report;  and  it  appearing  to  the  surrogate  that 
the  said  sale  was  legally  made  and  fairly  conducted,  and  that  a  greater  sum 
cannot  be  obtained  for  said  premises  than  was  bid  on  said  sale,  it  is  therefore 
ordered  that  the  said  sale  be  and  the  same  is  hereby  confirmed :  And  it  is 
further  ordered  that  a  conveyance  of  the  said  premises  be  made  and  executed 
in  due  form  of  law,  by  the  said  executor,  to  the  said  John  Styles,  his  heirs  and 
assigns  forever,  upon  his  complying  with  the  terms  of  sale  on  his  part  to  be 
performed :  And  it  is  further  ordered  that  the  said  executor  bring  into  this 
office  the  moneys  raised  on  said  sale. 

Note. — The  foregoing  report  and  order  can  be  easily  varied  for  a  credit  sale. 


No.  93. 

BOND  ON  SALE  OF  REAL  ESTATE. 

[Page  320.] 

Know  all  men  by  these  presents,  that  we  [the  executor  or  administrator 
and  two  sureties,]  are  held  and  firmly  bound  unto  the  people  of  the  state  of 
New  York,  in  the  sum  of  [double  the  value  of  the  real  estate  to  be  sold,]  law- 
ful money  of  the  United  States,  to  be  paid  to  the  said  people ;  to  the  which 
payment,  well  and  truly  to  be  made,  we  bind  ourselves,  our  and  each  of  our 
heirs,  executors  and  administrators,  jointly  and  severally,  firmly  by  these  pres- 
ents.   Sealed  with  our  seals  and  dated  this day  of ,  185 . .  . 

Whereas  an  application  for  authority  to  sell  the  real  estate  of ,  de- 
ceased, to  pay  his  debts,  is  now  pending  before  the  surrogate  of  the  county  of 

,  on  the  petition  of  the  above  bounden ,  executor  of  the  last 

will  and  testament  of  the  said  deceased,  now  therefore,  the  condition  of  this 

obligation  is  such,  that  if  the  said ,  in  case  the  said  surrogate  shall 

grant  an  order  of  sale  of  said  real  estate,  or  any  part  thereof,  shall  pay  all  the 

67 


530  APPENDIX  OF  FORMS. 

moneys  arising  from  such  sale,  after  deducting  the  expenses  thereof,  and  shall 
deliver  all  securities  taken  by  him  on  such  sale  to  the  said  surrogate,  within 
twenty  days  after  the  same  shall  have  been  received  and  taken  by  him,  then 
this  obligation  to  be  void,  otherwise  to  remain  in  full  force  and  virtue. 
Sealed  and  delivered  in  presence  of 

FORM  OF  EXEMPLIFCATION  OF  ORDER  OF  SALE,  OR  ANY  OTHER  PROCEEDING. 

The  People  of  the  state  of  New  York,  by  the  grace  of  God,  free  and  inde- 
pendent: 
[l.  s.]     To  all  to  whom  these  presents  shall  or  may  come,  greeting. 

Know  ye,  that  we  having  caused  the  records  of  our  surrogate's  court  of  our 
county  of  Washington  to  be  inspected,  do  find  there  of  record,  in  the  book  A, 
kept  in  the  said  court  for  sales  of  real  estate,  a  certain  decretal  order  in  the 
words  and  figures  following,  to  wit :  [Here  set  out  the  order  of  sale,  or  as  the 
case  may  be,  verbatim  to  the  end  of  it,  and  then  add:] 

All  which  we  have  caused,  by  these  presents,  to  be  exemplified,  and  the  seal 
of  our  said  surrogate's  court  to  be  hereto  affixed. 

Witness  J.  W.,  surrogate  of  the  said  county  of  W ,  at  S , 

this day  of ,  in  the  year  of  our  Lord,  one  thousand  eight 

hundred  and  fifty-nine. 

J.  W.,  Surrogate. 

Note. — -The  order  of  sale  and  order  confirming  it  must  be  set  out  at  length 
in  the  deed.  The  formal  words  by  which  it  is  exemplified  under  seal,  or  the 
seal,  need  not  be  so  inserted.  They  are  necessary  only  to  authenticate  the  or- 
der as  evidence,  and  not  to  give  it  validity  as  an  order.  No  order  is  made 
under  seal.  Another  form  of  caption  for  the  order  is  the  same  as  in  No.  8, 
with  a  conclusion — In  testimony,  &c,  as  in  No.  8,  with  the  seal  of  office  of  the 
surrogate  thereto  affixed.     Either  way  is  believed  to  be  valid. 


No.  94. 
DEED  FROM  EXECUTOR  TO  PURCHASER. 

[Ante,  p.  329.] 

This  indenture  made  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and ,  between ,  executor  of  the 

last  will  and  testament  of ,  late  of ,  deceased,  of  the  first 

part,  and  John  Styles,  of  the  same  place,  of  the  second  part :     Whereas,  at  a 

surrogate's  court,  held  for  the  county  of ,  at  the  surrogate's  office  in 

,  in  said  county,  on  the day  of ,  one  thousand 

eight  hundred  and ,  before ,  surrogate  of  the  said  county,  a 

certain  decretal  order  was  made  for  the  sale  of  the  real  estate  of  the  said  de- 
ceased, and  which  said  order  is  in  the  words  and  figures  following,  to  wit : 
[Here  copy  the  order  of  sale  at  length.]     And  whereas,  in  obedience  to  said 


APPENDIX  OP  FOKMS.  531 

order,  and  in  pursuance  of  the  statute  in  such  case  made  and  provided,  the  said 

party  of  the  first  part  did,  on  the day  of ,  sell  at  public 

auction,  the  whole  of  the  premises,  in  the  said  order  mentioned,  to  the  said 

party  of  the  second  part,  for  the  sum  of ,  and  did  thereupon  duly 

make  return  of  his  proceedings  in  the  premises  to  the  surrogate  of  the  said 
county ;  whereupon,  afterwards,  to  wit,  at  a  surrogate's  court  held  for  said 

county,  at  the  surrogate's  office  in  S ,  in  said  county,  before , 

surrogate  of  the  said  county,  on  the   day  of ,  in  the  year 

one  thousand  eight  hundred  and  fifty-nine,  another  order  of  the  said  surrogate's 
court  was  made  in  the  words  and  figures  following,  to  wit :  [Here  set  out  the 
order  confirming  the  sale  at  length.] 

And  whereas  the  said  party  of  the  second  part  has,  in  all  things,  complied  with 
the  terms  of  the  said  sale,  on  his  part  to  be  performed :  Now  therefore,  this 
indenture  witnesseth,  that  the  said  party  of  the  first  part  for  and  in  considera- 
tion of  the  sum  of ,  to  him  in  hand  paid  by  the  said  party  of  the  second 

part,  the  receipt  whereof  is  hereby  confessed  and  acknowledged,  has  granted, 
bargained  and  sold,  and  by  these  presents  doth  grant,  bargain  and  sell  unto 
the  said  party  of  the  second  part,  his  heirs  and  assigns  forever,  the  lands  and 
tenements,  in  the  said  order  mentioned,  [if  part  only,  set  out  such  as  are  sold,] 
together  with  all  and  singular  the  hereditaments  and  appurtenances  thereunto 
belonging,  or  in  any  way  appertaining,  and  the  reversion  and  reversions,  remain- 
der and  remainders,  rents,  issues  and  profits  thereof,  and  also  all  the  estate, 
right,  title,  interest,  claim  and  demand  which  the  said  deceased  had  at  the 
time  of  his  death,  of,  in  and  to  the  said  premises :  To  have  and  to  hold  the 
same  to  the  said  party  of  the  second  part,  his  heirs  and  assigns  forever,  to  the 
sole  and  only  proper  use,  benefit  and  behoof  of  the  said  party  of  the  second 
part,  his  heirs  and  assigns  forever.  In  witness  whereof,  the  said  party  of  the 
first  part  has  hereunto  set  his  hand  and  seal  the  day  and  year  in  this  inden- 
ture first  above  written. 

Sealed  and  delivered  in  )  [l.  s.] 


presence  of  ) 

Note. — This  deed  should  be  proved,  or  acknowledged,  and  recorded  the 
same  as  other  deeds. 


No.  95. 

ORDER  FOR  DISTRIBUTION,  Ac. 

[Ante,  p.  334.] 


In  toe  Matter  of  the  real  estate 

of late  of ,  )■  Date. 

DECEASED. 


The  avails  of  the  real  estate  of  the  deceased,  sold  under  the  order  heretofore 
made  in  this  matter,  having  been  brought  into  court,  it  is  ordered  that  all  per- 


532  APPENDIX  OF  FORMS. 

sons  having  any  claims  or  demands  against  the  estate  of  the  deceased,  which 
have  not  already  been  allowed,  exhibit  and  prove  the  same  before  the  surro- 
gate of  the  county  of ,  at  his  office,  in ,  in  said  county,  on 

the day  of next,  at  ten  o'clock  in  the  forenoon :     And  it 

is  further  ordered  that  distribution  be  made  among  the  creditors  of  the  de- 
ceased on  the  day  and  at  the  place  aforesaid,  or  as  soon  thereafter  as  the  said 
claims  and  demands  can  be  examined,  and  that  a  copy  of  this  order  be  published 
six  weeks,  successively,  in  the 


No.  96. 
ORDER  FOR  LEAVE  TO  EXHIBIT  CLAIMS. 

[Ante,  p.  334.] 


In  the    Matter  &o. 

)■  Date. 
of 

On  filing  an  affidavit  of  due  publication  of  a  copy  of  the  order  made  in  this 

matter  on  the day  of last,  it  is  ordered  that  all  persons 

having  claims  against  the  estate  of  the  deceased  which  have  not  already  been 
examined,  have  leave  to  exhibit  and  prove  the  same. 


No.  97. 
ORDER  ALLOWING  CLAIMS  AND  DECREEING  DISTRIBUTION. 
[Ante,  p.  335.] 
In  the  Matter, 


".} 


,  Date. 
&c.  &c. 

This  cause  having  been  brought  to  a  final  hearing  on  the day  of 

and  divers  persons  having  claims  against  the  estate  of  the  deceased 

having  presented  the  same  for  allowance ;  whereupon,  after  hearing  the  proofs 
and  allegations  of  the  parties,  it  is  ordered,  adjudged  and  decreed,  and  this 
court,  by  virtue  of  the  power  vested  in  it,  doth  order,  adjudge  and  decree  that 
there  is  due  and  owing  from  the  estate  of  the  said  deceased  to  the  several  per- 
sons hereinafter  in  the  schedule  marked  A  subjoined  to  this  order  mentioned, 
the  sums  of  money  set  opposite  their  names  respectively,  over  and  above  all 
discounts,  and  that  the  same  are  vahd  and  subsisting  debts  against  the.  said 
estate,  not  secured  by  judgment,  mortgage  or  other  lien  against  the  real  estate 
of  the  said  deceased ;  +  and  it  is  further  ordered,  that  there  be  allowed  and 
paid  out  of  the  avails  of  the  said  real  estate,  sold  in  pursuance  of  the  order 


APPENDIX  OF  FORMS. 


533 


heretofore  made  in  this  matter,  to  the  several  persons  hereinafter  mentioned, 
for  their  costs  and  charges  in  this  matter,  the  following  sums,  to  wit : 

To  A.  B>,  executor,  as  per  bill  on  file, $15  00 

"       "      for  printer's  bill  paid  by  him, 12  00 

"   the  surrogate,  for  his  fees  in  this  matter, 25  00* 

"  "  for  his  commissions, 50  00 

"   G-.  H.,  attorney  of  executor  taxed  bill  on  fde, 25  00 


$127  00 
And  whereas  it  appears  that  the  moneys  arising  from  the  sale  of  the  said 

real  estate  amounts  to  the  sum  of ,  and  the  debts  of  the  said  deceased, 

as  adjudged  to  be  valid  and  subsisting  by  the  order  of  this  court,  bearing  date 
,  and  by  this  order,  in  the  aggregate  amount  to ,  it  is  there- 
fore further  ordered,  adjudged  and  decreed,  and  this  court,  by  virtue  of  the 
power  vested  in  it,  doth  order,  adjudged  and  decree,  that  so  much  of  the  said 

as  is  necessary  to  pay  the  said  costs  and  charges  as  aforesaid  be  applied 

for  that  purpose,  and  that  the  residue  be  distributed  among  the  said  creditors 
of  the  said  deceased  in  proportion  to  their  respective  debts,  according  to  the 
schedule  hereto  annexed  marked  B,  and  that  the  same  be  paid  on  demand  at 
this  office.* 

Schedule  A  of  the  claims  against  the  estate  of ,  deceased,  adjudged 

by  the  foregoing  order  to  be  valid  and  subsisting. 

L.  M., $25  00 

O.  P., 30  00 


$55  00 
Schedule  B  of  all  the  claims  against  the  estate  of ,  deceased,  ad- 
judged to  be  valid  and  subsisting,  the  whole  sum  due  on  each  claim  respect- 
ively, and  the  dividend  to  which  each  claimant  is  entitled  out  of  the  avails  of 
the  real  estate  of  the  deceased,  in  pursuance  of  the  foregoing  order. 


NAMES. 


Richard  Roe, .  . 
John  Stiles,  . . . 
James  Jackson, 

L.  M., 

O.  P 


Whole  sum  due. 


500 

675 

983 

25 

30 


2213      G6 


00 
45 
21 
00 
00 


Dividend. 


230 

259 

425 

11 

13 


938      99 


00 
69 
30 
00 

00 


No.  98. 

If  the  avails  of  the  real  estate  exceeds  the  expenses  and  debts,  strike  out  the  ivords 
at  the  conclusion  of  the  foregoing  order  in  italices,  and  insert  instead  thereof  "  in 
payment  of,"  and  at  the  end  of  the  order  *  add  asfolloios  : 

And  whereas,  it  appears  that  A.  B.  and  C.  D.  were  devisees,  as  tenants  in 


534  APPENDIX  OF  FORMS. 

common,  under  the  last  will  and  testament  of  the  said  deceased,  of  lot  No. 

2,  mentioned  in  the  order  of  sale  made  in  this  matter  on  the day  of 

,  and  that  the  said  lot  sold  for  the  sum  of  $500,  parcel  of  the  said 

,  for  which  the  whole  of  the  said  real  estate  of  the  said  deceased  was 

sold  as  aforesaid ;  and  whereas  it  appears  that  after  paying  all  the  expenses  of 
the  said  sale,  and  the  valid  and  subsisting  debts  against  the  said  estate  as 
aforesaid,  there  remains  the  sum  of  .$200,  it  is  therefore  ordered,  adjudged  and 
decreed,  and  this  court,  by  virtue  of  the  power  vested  in  it,  doth  order,  adjudge 
and  decree  that  the  sum  of  $100,  parcel  of  the  said  $200  be  paid  in  equal  parts  to 
the  said  A.  B.  and  C.  D.,  devisees,  as  aforesaid.  And  inasmuch  as  the  residue  of 
the  said  lands  and  tenements,  sold  as  aforesaid  was  not  devised  by  the  said 
will,  but  descended  to  the  heir  at  law  of  the  said  deceased,  it  is  therefore 
further  ordered  that  the  remaining  sum  of  $100  be  paid  in  equal  parts  to  G-. 
H.  and  J.  K.,  heirs  at  law  of  the  said  deceased,  pursuant  to  the  statute  in  such 
case  made  and  provided. 


No.  99. 

If  the  deceased  left  a  widow  entitled  to  dower  in  the  lands  sold,  and  she  elects  a 
gross  sum  in  lieu  of  dower,  add  at  the  t  in  order,  No.  90,  as  follows :  [Ante, 
p.  334.] 

And  it  appearing  that  A.  B.,  widow  of  the  said  deceased,  is  entitled  to 
dower  in  the  lands  and  tenements  sold  as  aforesaid,  and  the  said  A.  B.,  having 

by  an  instrument  in  writing,  under  her  hand  and  seal,  bearing  date , 

and  duly  acknowledged  in  the  same  manner  as  deeds  entitled  to  be  recorded, 
consented  to  accept,  in  lieu  of  her  dower  in  the  said  lands,  such  sum  in  gross 
as  shall  be  deemed,  upon  the  principles  of  law  applicable  to  annuities,  a  rea- 
sonable satisfaction  for  such  claims,  which  said  written  consent  is  on  file  in 
this  court ;  and  it  appearing  that  the  said  A.  B.  is  aged  45  years,  and  that  the 
whole  avails  of  said  sale  amount  to  ,  it  is  therefore  ordered,  ad- 
judged and  decreed,  and  this  court,  by  virtue  of  the  power  vested  in  it,  doth 

order,  adjudge  and  decree,  that  the  said  A.  B.  is  entitled  to  the  sum  of , 

in  gross,  as  a  reasonable  satisfaction  for  said  dower,  according  to  the  statute  in 
such  case  made  and  provided,  and  that  the  same  be  paid  to  her  at  this  office 
on  demand. 

Note.  The  residue  of  the  order  will  require  a  slight  modification  where 
there  is  a  widow's  claim  for  dower. 


No.  100. 
If  the  widow  does  not  consent  to  take  a  gross  sum,  tlie  foregoing  shoidd  be  mod- 
ified as  follows :     [Ante,  p.  335.] 

And  it  appearing  that  A.  B.,  widow  of  the  said  deceased,  is  entitled  to  dower 


APPENDIX  OF  FORMS.  535 

in  the  lands  and  tenements  sold  as  aforesaid,  it  is  therefore  further  ordered 

that  the  sum  of ,  being  one  third  of  the  purchase  money  as  aforesaid, 

be  invested  in  permanent  securities  on  annual  interest,  in  the  name  of  office 
of  the  said  surrogate,  and  that  the  said  interest  be  paid  to  the  said  A.  B.  an- 
nually during  her  life. 


No.  101. 
NOTICE  TO  THE  WIDOW  TO  ELECT. 
[Ante,  p.  334.] 
In  the  matter  of  the  real  } 
estate  of,  &c  ) 

To  A.  B.,  widow  of  the  above  deceased.  You  are  hereby  notified  and  re- 
quired to  elect  whether  you  will  accept  such  sum,  in  gross,  as  shall  be  deemed, 
upon  the  principles  of  law  applicable  to  annuities,  a  reasonable  satisfaction  of 
your  claim  for  dower  in  the  lands  of  the  above  deceased,  in  lieu  of  your  said 
dower ;  and  you  are  notified  so  to  elect  before  the  surrogate  of  the  county  of 

Washington,  at  his  office  in on  the day  of [the  day 

appointed  for  distribution.]     Dated,  &c. 

Signed  by  the  Executor,  &c. 


No.  102. 


FORM  OF  WIDOW'S  CONSENT  TO  ACCEPT  A  GROSS  SUM  IN  LIEU  OF 
HER  DOWER. 

[2  R.  S.  106,  §  36.     2  Comst.  245.     Ante,  p.  333.] 


IN  THE  MATTER  OF  THE  REAL  ESTATE 
OF ,  LATE  OF ,  DE- 
CEASED. 


Whereas  certain  lands  and  tenements  of  the  said  deceased,  in  which  the  un- 
dersigned is  entitled  to  dower  as  the  widow  of  the  said  deceased,  have  been 
recently  sold  by  virtue  of  an  order  of  the  surrogate  of  the  county  of  Washing- 
ton, in  this  matter,  and  which  said  lands  and  tenements  are  bounded  as  fol- 
lows, to  wit : ;  and  whereas  the  moneys  arising  from  the  said  sale 

have  been  brought  into  the  said  surrogate's  court  for  distribution,  now  there- 
fore, know  all  men  by  these  presents,  that  I,  A.  B.,  the  widow  of  the  said  de- 
ceased, do  by  these  presents  consent  to  accept  in  lieu  of  my  said  dower  in  the 
lands  and  tenements  aforesaid,  such  sum  in  gross,  as  shall  be  deemed,  upon 
the  principles  of  law  applicable  to  annuities,  a  reasonable  satisfaction  for  my 
said  dower.  In  witness  whereof  I  have  hereto  set  my  hand  and  seal,  this 
day  of ,  A.  D.  185  . 

Sealed  and  delivered  in  )  A.  B.         (l.  s.) 

presence  of  ) 


i36 


APPENDIX  OF  FORMS. 


[To  be  acknowledged  or  proved  in  the  same  manner  as  deeds  entitled  to  be 
recorded.  The  acknowledgment,  of  course,  must  bo  taken,  before  a  judge  or 
commissioner ;  and  if  the  dower  has  been  previously  assigned  to  the  widow, 
it  cannot  be  sold,  but  the  purchaser  takes  the  land  subject  to  her  dower. 
2  Comst.  245.] 


No.   103. 

ANNUITY  TABLE. 

[Ante,  p.  334.] 

A  table  corresponding  with  the  Northampton  tables  referred  to  in  the  rules 

of  the  supreme  court,  showing  the  value  of  an  annuity  of  one  dollar,  at  six  per 

cent,  on  a  single  life,  at  any  age  from  one  year  to  ninety-four,  inclusive. 


Age. 

No.  of  years 
purchase  the  an- 
nuity is  worth. 

Age. 

No.  of  year3 
purchase  the  an- 
nuity is  worth. 

Age. 

No.  of  years 
purchase  the  an- 
nuity is  worth. 

Age. 

No.  of  years 
purchase  the  an- 
nuity is  worth. 

1 

10.107 

25 

12.063 

49 

9.563 

73 

4.781 

2 

11.724 

26 

11.992 

50 

9.417 

74 

4.565 

3 

12.348 

27 

11.917 

51 

9.273 

75 

4.354 

4 

12.769 

28 

11.841 

52 

9.129 

76 

4.154 

5 

12.962 

29 

11.763 

53 

8.980 

77 

3.952 

6 

13.156 

30 

11.682 

54 

8.827 

78 

3.742 

7 

13.275 

31 

11.598 

55 

8.670 

79 

3.514 

8 

13.337 

32 

11.512 

56 

8.509 

80 

3.281 

9 

13.335 

33 

11.423 

57 

8.343 

81 

3.156 

10 

13.285 

34 

11.331 

58 

8.173 

82 

2.926 

11 

13.212 

35 

11.236 

59 

7.999 

83 

2.713 

12 

13.130 

36 

11.137 

60 

7.820 

84 

2.551 

13 

13.044 

37 

11.035 

61 

7.637 

85 

2.402 

14 

12.953 

38 

10.929 

62 

7.449 

86 

2.266 

15 

12.857 

39 

10.819 

63 

7.253 

87 

2.138 

16 

12.755 

40 

10.705 

64 

7.052 

88 

2.031 

17 

12.655 

41 

10.589 

65 

6.841 

89 

1.882 

18 

12.562 

42 

10.473 

66 

6.625 

90 

1.689 

19 

12.477 

43 

10.356 

67 

6.405 

91 

1.422 

20 

12.398 

44 

10.235 

68  • 

6.179 

92 

1.136 

21 

12.329 

45 

10.110 

69 

5.949 

93 

806 

22 

12.265 

46 

9.980 

70 

5.716 

94 

518 

23 

12.200 

47 

9.846 

71 

5.479 

24 

12.132 

48 

9.707 

72 

5.241 

1 

RULE    FOR   COMPUTING    THE   VALUE    OF   THE   LIFE   ESTATE    OR   ANNUITY. 

Calculate  the  interest  at  6  per  cent  for  one  year,  upon  the  sum  to  the  in- 
come of  which  the  person  is  entitled.  Multiply  this  interest  by  the  number 
of  years  purchase  set  opposite  the  person's  age  in  the  table,  and  the  product 
is  the  gross  value  of  the  hfe  estate  of  such  person  in  said  sum. 

EXAMPLE. 

Suppose  a  widow's  age  is  37 ;  and  she  is  entitled  to  dower  in  real  estate 
worth  $350.75.     One-third  of  this  is  $110.91f.    Interest  on  $116.91,  one  year 


APPENDIX  OP  FORMS.  537 

at  6  per  cent  (as  fixed  by  the  7Gth  rule)  is  $7.01.  The  number  of  years  pur- 
chase which  an  annuity  of  one  dollar  is  worth,  at  the  age  of  37,  as  appears  by 
the  table,  is  11  years  and  r^5  parts  of  a  year,  which  multiplied  by  $7.01,  the 
income  for  one  year,  gives  $77.35,  and  a  fraction,  as  the  gross  value  of  her 
right  of  dower. 

For  the  rule  to  compute  the  present  value  of  an  inchoate  or  contingent 
right  of  dower,  see  Jackson  v.  Edwards,  7  Paige,  480  ;  McKeuns  Pr.  L.  Tables, 
25,  §  4;  Hendry's  Ann,  Tables,  87,  Prob.  4. 


No.  104. 


PETITION  TO  SELL  ADDITIONAL  PARCEL  OF  THE  REAL  ESTATE  OP  THE 

DECEASED,  WHEN  THE  AVAILS  OP  THE  FIRST  SALE 

PROVE  INSUFFICIENT. 

[Ante,  p.  330.] 

To  the  surrogate  of  the  county,  of 

The  petition  of  A.  B.,  executor  of  the  last  will  and  testament  of  C.  D.,  late 
of  the  town  of ,  deceased,  respectfully  showeth  : 

That  your  petitioner  lately  presented  his  petition  to  the  surrogate  of  the 
said  county,  in  due  form  of  law,  for  authority  to  mortgage,  lease  or  sell,  so 
much  of  the  real  estate  of  the  said  deceased  as  would  be  necessary  to  pay  his 
debts ;  and  such  proceedings  were  thereupon  had,  by  the  said  surrogate,  that 

afterwards,  to  wit,  at  a  surrogate's  court  held,  &c ,  the  said  surrogate 

being  satisfied,  upon  due  examination  in  the  premises,  that  the  said  executor 
had  fully  complied  with  the  several  provisions  of  the  statute  in  such  case  made 
and  provided,  and  that  the  debts  outstanding  against  the  said  deceased,  as  far 
as  the  same  could  be  ascertained,  and  which  were  valid  and  subsisting,  and 
not  secured  by  judgment,  mortgage  or  other  lien  on  the  real  estate  of  the  said 
deceased,  amounted  to ,  and  that  the  personal  estate  of  the  said  de- 
ceased was  insufficient  to  pay  his  debts,  and  that  the  whole  of  the  said  personal 
estate  which  could  have  been  applied  to  the  payment  of  the  debts  of  the  said 
deceased  had  been  applied  for  that  purpose ;  it  was  thereupon  ordered,  ad- 
judged and  decreed,  by  the  said  court,  that  the  said  executor  sell  at  public 
auction  or  vendue,  the  premises  therein  mentioned  and  described,  and  that  he 
make  return  of  his  proceedings  to  the  said  court,  according  to  law. 

And  your  petitioner  further  showeth,  that  the  said  executor,  in  pursuance 
of  the  said  order,  and  by  virtue  of  the  statute  in  such  case  made  and  provided, 

on  the day  of ,  sold  at  public  auction  or  vendue,  the  lands 

and  tenements  in  the  said  order  mentioned,  to for  the  sum  of , 

being  the  highest  sum  bid  for  the  same,  and  did  thereupon,  on  the 

day  of ,  make  a  return  of  his  said  proceedings  to  the  said  surrogate ; 

and  the  said  surrogate  did,  by  an  order  bearing  date ,  confirm 

the  said  sale,  and  direct  that  a  deed  of  the  said  premises  be  executed  to  the 
purchaser  thereof,  in  pursuance  of  the  terms  of  said  sale. 

68 


538  APPENDIX  OP  FORMS. 

'  And  your  petitioner  further  showeth,  that  a  deed  was  accordingly  executed 
by  your  petitioner,  according  to  the  in  part  last  mentioned  recited  order,  and 
the  money  arising  from  the  said  sale  was  duly  brought  into  court  for  distribu- 
tion. And  your  petitioner  further  showeth,  that  after  the  payment  of  the 
costs  and  charges  in  the  said  matter,  the  residue  of  the  said  money  was  dis- 
tributed, by  the  said  surrogate,  among  the  creditors  of  the  said  deceased, 
whose  debts  were  adjudged  by  the  said  court  to  be  valid  and  subsisting,  as  far 

forth  as  the  same  would  extend,  leaving  a  balance  of still  due  and 

owing  to  the  several  persons  whose  debts  were  allowed  as  aforesaid,  accord- 
ing to  the  schedule  annexed  to  the  order  in  this  matter,  dated 

And  your  petitioner  further  showeth,  that  the  said  deceased  died  seised,  as 
is  alleged,  of  the  following  described  premises,  not  sold  under  the  former  order 
in  this  matter,  and  which  said  premises  are  situate  in 

[Set  out  description,  value,  name  of  occupant,  devisee  or  heir,  as  in  original 
petition,  and  conclude  with  the  following  prayer:] 

Your  petitioner  therefore  prays  that  authority  may  be  granted  to  him,  pur- 
suant to  the  statute  in  such  case  made  and  provided,  to  mortgage,  lease  or  sell 
so  much  of  the  said  real  estate  as  will  be  necessary  to  pay  the  debts  of  the 
said  deceased,  established  as  aforesaid,  and  which  still  remain  due  and  unpaid, 
together  with  the  costs  of  this  proceeding,  and  your  petitioner  will  ever 

pray,  &c. 

A.  B. 

Affidavit  of  the  truth  thereof,  as  in  the  first  petition. 

Bond  of  the  executor  is  the  same  as  in  the  first  order,  with  a  penalty  double 
the  value  of  the  land.  If  the  persons  in  possession  were  notified,  under  the 
first  application,  notice  of  this  application  need  not,  it  is  conceived,  be  given. 
But  if  they  were  not  then  notified,  and  the  premises  were  not  embraced  in 
the  first  petition,  it  is  believed  that  a  notice  to  show  cause  should  be  served 
as  on  an  original  application ;  except  that  the  creditors  need  not  be  called  on 
to  exhibit  their  claims,  &c. 

No.  105. 

FOR  THE  SALE  OF  ADDITIONAL  PARCEL  OF  LAND. 

[Ante,  p.  330.] 

In  the  Matter  of  the  real  estate     _ 

>  Date. 
of 

Whereas,  heretofore,  on  the  petition  of  A.  B.,  executor  of  the  last  will  and 

testament  of ,  deceased,  praying  for  an  order  granting  authority  to 

mortgage,  lease  or  sell  so  much  of  the  real  estate  of  the  said  deceased  as  would 
be  sufficient  to  pay  his  debts,  pursuant  to  the  statute  in  such  case  made  and 
provided,  such  proceedings  were  thereupon  had  that  the  said  surrogate's  court 
did,  on  the day  of ,  order,  adjudge,  and  decree  that  certain 


APPENDIX  OP  FORMS.  539 

lands  and  tenements  of  the  said  deceased,  therein  mentioned,  be  sold  for  the 
payment  of  the  debts  of  the  said  deceased ;  and  whereas  the  said  executor  has, 
by  his  petition,  duly  verified  by  affidavit,  set  forth,  that  in  pursuance  of  the 

said  order,  he  caused  the  said  premises  to  be  duly  sold  to ,  for  the 

sum  of ;  that  the  said  sale  was  duly  confirmed  by  this  court,  by  an 

order  bearing  date ,  and  that  the  avails  of  the  said  sale  have  been 

duly  distributed,  by  the  said  surrogate,  among  the  creditors  of  the  said  deceased, 
whose  claims  have  been  heretofore  allowed  in  proportion  to  their  respective 
demands ;  and  there  still  remains  due  and  unpaid  to  the  said  respective  credit- 
ors a  large  sun*  of  money,  amounting  in  the  aggregate  to  the  sum  of  ......  ., 

which  he  has  no  assets  in  his  hands  to  pay,  and  that  there  is  real  estate  of 
which  the  said  deceased  died  seised,  remaining  in  this  state  unsold,  and  pray- 
ing that  so  much  thereof  may  be  ordered  to  be  mortgaged,  leased  or  sold  as 
will  be  be  necessary  to  pay  the  said  debts ;  and  whereas  it  appears  by  the  affi- 
davit of ,  and  by  inspecting  the  record  of  the  said  surrogate's  office, 

that  the  facts  above  set  forth  are  true,  it  is  therefore  ordered,  adjudged  and 
decreed,  [as  in  a  common  order  of  sale.] 


No.   106. 


ORDER  THAT  EXECUTOR  Ac.  GIVE   BAIL,  PREPARATORY  TO  MAKING 
ORDER  OF  SALE. 

[Ante,  p.  330.] 
'  Date. 


In  the  Matter  of  the  real  estate 
of ,  late  of , 

deceased. 


It  appearing  by  the  records  and  files  of  this  court,  that  the  real  estate  of  the 

deceased  is  of  the  value  of ,  and  that  it  is  necessary  to  have  the  same 

sold  for  the  payment  of  the  debts  of  the  deceased,  it  is  therefore  ordered  that 
,  executor  of  the  last  will  and  testament  of  the  said  deceased,  in  con- 
junction with  two  sufficient  sureties,  to  be  approved  of  byt  the  surrogate,  exe- 
cute a  bond  to  the  people  of  this  state,  in  the  penal  sum  of  [double  the  value 

of  the  real  estate,]  conditioned  that  the  said will  pay  all  the  moneys 

arising  from  the  sale  of  the  real  estate  of  the  deceased,  and  deliver  all  securi- 
ties taken  by  him  on  such  sale,  to  the  said  surrogate,  within  twenty  days  after 
the  same  shall  have  been  received  and  taken. 


540  APPENDIX  OP  FORMS. 


No.  107. 

ORDER  APPOINTING  A  DISINTERESTED  FREEHOLDER  TO  CONDUCT 

A   SALE,   Ac. 

[Ante,  p.  320.] 


In  tiie  Matter  of  the  real  estate  , 

}  Date. 

OF ,  DECEASED. 


On  filing  the  petition  of ,  a  creditor  of  the  deceased,  setting  forth 

that ,  executor,  has  refused  and  still  refuses  to  execute  to  the  people 

of  this  state  the  bond  required  by  the  order  of  this  court,  bearing  date  the 

day  of ,  and  nominating a  disinterested  freeholder, 

to  make  the  sale  of  the  real  estate  of  the  said  deceased,  and  on  filing  an  affi- 
davit of  the  truth  of  the  facts  in  the  said  petition  set  forth,  it  is  ordered  that 

the  said be  appointed  to  make  the  sale  of  the  real  estate  of  the  said 

deceased. 


No.  108. 

THE  APPOINTMENT. 

[Ante,  p.  320.] 

The  People  of  the  state  of  New  York,  by  the  grace  of  God,  free  and  inde- 

[l.  s.]     pendent : 

"Whereas, ,  executor  of  the  last  will  and  testament  of , 

late  of ,  deceased,  lately  presented  a  petition  to  our  surrogate  of  our 

county  of  W ,  for  authority  to  mortgage,  lease  or  sell  so  much  of  the 

real  estate  of  the  said  deceased  as  would  be  necessary  to  pay  his  debts ;  and 
such  proceedings  have  been  thereupon  had,  in  our  said  surrogate's  court,  that 
the  said  executor  has  been  required,  in  conjunction  with  two  sureties  to  be 
approved  of  by  the  surrogate,  to  execute  a  bond  to  the  people  of  this  state  in 

the  penal  sum  of ,  conditioned  that  the  said  executor  will  pay  all 

moneys  arising  from  the  sale  of  the  real  estate  of  the  deceased,  after  deducting 
the  expenses  thereof,  and  deliver  all  securities  taken  by  him  on  such  sale  to  the 
surrogate,  within  twenty  days  after  the  same  shall  have  been  received  and 
taken  by  him ;  and  the  said  executor  has  neglected  and  refused  to  execute  such 

bond ;  and ,  a  creditor  of  the  said  deceased,  has  applied  to  the  said 

surrogate,  for  relief  in  the  premises :  Now  therefore,  be  it  known,  that  in  pur- 
suance of  the  statute  in  such  case  made  and  provided,  and  of  an  order  of  the 
said  surrogate's  court,  duly  made  and  entered,  we  have  constituted  and  appoint- 
ed, and  by  these  presents  do  constitute  and  appoint ,  a  disinterested 

freeholder,  to  make  the  sale  of  the  real  estate  of  the  said  deceased  in  the  place 
of  the  said  executor,  hereby  vesting  in  the  said ,  upon  his  executing 


APPENDIX  OP  FORMS.  541 

such  bond  as  is  required  by  law,  all  the  power  and  authority  of  an  executor 
of  the  last  will  and  testament  of  the  said  deceased,  in  relation  to  the  sale  of 
the  real  estate  of  the  said  deceased. 

In  testimony  whereof,  we  have  caused  the  seal  of  office  of  our  said  surrogate 
to  be  hereto  affixed. 

Witness ,  surrogate  of  our  said  county,  at ,  this 

day  of ,  in  the  year  of  our  Lord 

AB. 


FORMS  IN  RELATION  TO  GUARDIANSHIP. 
[Ante,  p.  443.] 

No.  109. 

PETITION    FOR   THE   APPOINTMENT   OP  A  GUARDIAN   BY  A  MINOR   OF 
THE  AGE  OF  14  AND   UNDER  21. 

[Ante,  p.  454.] 

To  the  surrogate  of  the  county  of  Washington. 

The  petition  of  A.  B.  respectfully  showeth : 

That  your  petitioner  is  a  minor  under  the  age  of  twenty-one  years  and 
above  the  age  of  fourteen  years,  to  wit :  of  the  age  of  fifteen  years  and  six 
months,  as  he  verily  believes ;  that  your  petitioner  is  a  resident  of  the  town  of 
Salem,  in  the  county  aforesaid,  and  is  the  son  of  C.  D.,  late  of  the  same  place, 

deceased ;  that  the  said  C.  D.  departed  this  life  on  or  about  the day 

of ,  without  having  appointed,  either  by  deed  or  will,  any  guardian 

for  your  petitioner,  to  his  knowledge  or  belief.  That  your  petitioner  is  seised 
of  real  estate  of  the  annual  value  of  sixty  dollars,  and  is  possessed  of  personal 
estate  of  the  value  of  $2000,  as  he  is  informed  and  believes ;  that  your  peti- 
tioner is  desirous  that  a  guardian  be  appointed  of  his  person  and  estate  during 

his  minority,  and  for  that  purpose  nominates  E.  F.,  of  the  town  of , 

in  the  county  of ,  to  be  such  guardian. 

Your  petitioner  states  that  the  said  E.  F.  is  a  suitable  person  to  be  appointed 
such  guardian ;  that  he  has  consented  to  act  in  that  capacity,  if  appointed,  and 
to  give  the  requisite  security. 

Your  petitioner  therefore  prays  that  the  said  surrogate  will  inquire  into  the 
circumstances  above  set  forth,  and  grant  the  prayer  of  the  said  petition. 

Dated. 

A.  B. 

Washington  county  1  ss.  Gk  II.,  being  duly  sworn,  saitli  that  he  is  acquainted 
with  the  above  named  A.  B.,  and  was  present  and  saw  him  subscribe  his  name 
to  the  foregoing  petition. 

Sworn,  &c.  Gr.  H. 


542  APPENDIX  OF  FORMS. 

No.  110. 

CONSENT  OF  GUARDIAN. 

[Ante,  p.  455.] 

I  hereby  consent  to  become  guardian  of  the  person  and  estate  of  A.  B.,  the 
minor  in  the  foregoing  petition  named,  in  case  I  should  be  appointed  for  that 
purpose.     Dated, 

In  presence  of  E.  F. 

L.  M. 

Washington  county,  ss.  L.  M.,  being  duly  sworn,  saith  that  he  is  acquainted 
with  E.  F.,  in  the  foregoing  petition  named,  and  was  present  and  saw  him 
subscribe  his  name  to  the  above  consent. 

Sworn,  &c.  L.  M. 


No.  111. 

AFFIDAVIT  OF  MINOR'S  PROPERTY. 

[Ante,  p.  455.] 

Washington  county,  ss.     0.  P.,  being  duly  sworn,  saith  that  he  is  acquainted 

with  A.  B.,  the  minor  named  in  the  petition  hereto  annexed;  that  the  said 

A.  B.  is  reputed  to  be  the  son  of  C.  D.,  late  of ,  deceased,  and  to  be  of 

the  age  in  the  said  petition  set  forth ;  and  this  deponent  further  saith.  that  the 

said  A.  B.  is  a  resident  of ,  in  the  said  county  of  Washington ;  that 

he  is  seised  in  fee  simple,  as  your  petitioner  believes,  of  a  certain  farm  situate 

in ,  in  said  county,  containing  about  100  acres  of  land,  on  which 

there  is  a  dwelling  house,  two  barns  and  necessary  out  buildings ;  that  the 
said  farm  is  worth  about  one  thousand  dollars,  and  the  rents  thereof  are  about 
sixty  dollars  a  year.  That  the  said  A.  B.  is  possessed  of  a  personal  property 
of  the  value  of  two  thousand  dollars ;  that  the  said  personal  property  is  com- 
posed of  the  following  items,  to  wit : 

Ten  shares  in  the  Bank  of  A.,  worth §250  00 

A  bond  and  mortgage  executed  by  B.,  on  which  is  due  and 

well  secured 750  00 

Ten  cows,  worth 150  00 

One  hundred  sheep, 200  00 

Promissory  notes  and  accounts  to  the  amonnt  of 500  00 

And  household  furniture  of  the  value  of 150  00 

§2000  00 

That  some  of  the  notes  and  accounts  are  of  a  doubtful  character,  and  remain 
uncollected  in  the  hands  of  the  administrators  of  his  father's  estate.  That  the 
residue  of  the  said  personal  property  is  also  in  the  hands  of  the  said  adminis- 


APPENDIX  OF  FORMS.  543 

trators,  who  are  willing  to  deliver  it  over  to  the  legal  guardian  of  the  said  A.  B. 
That  this  deponent  is  acquainted  with  E.  P.,  the  person  nominated  by  the 
said  minor  as  guardian.  He  is  uncle  of  the  said  A.  B.,  a  man  of  fair  character, 
and  in  good  circumstances  in  life,  and  a  proper  and  suitable  person  to  be  such 
guardian  in  the  opinion  of  this  deponent. 

Sworn  in  open  court,  &c.  0.  P. 

Note.  If  the  person  who  proves  the  circumstances  of  the  minor  saw  the 
petition  and  consent  executed,  the  other  affidavits  may  be  omitted,  and  the 
fact  of  execution  be  inserted  in  the  above. 


No.  112. 


ORDER  FOR  THE  APPOINTMENT  OF  GUARDIAN  TO  BE  ENTERED  IN 
MINUTE  BOOK. 

[Ante,  p.  455.] 


In  the  Matter  of  the   Guardian- 
ship of  the   person   and   estate  V  June  10,  1859. 

OF   A.  B.,  A  MINOR. 

On  reading  and  filing  a  petition  of  A.  B.,  a  minor,  setting  forth  that  he  is 

the  son  of ,  late  of ,  deceased,  and  is  aged  fifteen  years  and 

six  months,  and  is  a  resident  of ,  in  said  county,  and  is  seised  and 

possessed  of  certain  real  and  personal  property  therein  mentioned,  and  nomi- 
nating E.  F.,  of ,  to  be  appointed  guardian  of  the  person  and  estate 

of  the  said  minor ;  and  on  reading  and  filing  the  consent  in  writing  of  the  said 
E.  F.  to  act  as  such  guardian,  if  appointed ;  and  the  affidavit  of  0.  P.  annexed 
to  the  said  petition,  setting  forth  the  circumstances  of  the  said  minor :  it  is 
ordered  that  the  said  E.  F.  be  appointed  guardian  of  the  person  and  estate  of 
the  said  A.  B.  during  his  minority,  on  his  entering  into  a  bond  to  the  said 
minor,  with  sufficient  security,  to  be  approved  of  by  the  surrogate,  in  the  penal 

sum  of ;  conditioned  that  the  said  E.  F.  will  faithfully  in  all  things 

discharge  the  duty  of  a  guardian  to  the  said  minor,  according  to  law,  and  that 
he  will  render  a  true  and  just  account  of  all  moneys  and  property  received  by 
him,  and  of  the  application  thereof,  and  of  his  guardianship  in  all  respects,  to 
any  court  having  cognizance  thereof  when  thereunto  required. 


544  APPENDIX  OF  FORMS. 

No.  113. 

BOND  OF  GUARDIAN. 

[Ante,  p.  455.] 

Know  all  men  by  these  presents,  that  we ,  of ,  are  held 

and  firmly  bound  unto ,  of ,  a  minor,  in  the  sum  of , 

lawful  money  of  the  United  States,  to  be  paid  to  the  said ,  his  cer- 
tain executors,  administrators  or  assigns,  and  to  which  payment,  well  and 
truly  to  be  made,  we  bind  ourselves,  our  and  each  of  our  heirs,  executors  and 
administrators,  jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  the day  of ,  1859. 

The  condition  of  this  obligation  is  such,  that  if  the  above  bounden 

shall  faithfully  in  all  things  discharge  the  duty  of  a  guardian  to  the  above 

named ,  minor,  according  to  law,  and  shall  render  a  true  and  just 

account  of  all  moneys  and  property  received  by  him,  and  of  the  application 
thereof,  and  of  his  guardianship  in  all  respects,  to  any  court  having  cognizance 
thereof,  when  thereunto  required,  then  this  obligation  to  be  void,  otherwise 
in  full  force  and  virtue. 

Sealed  and  delivered  in  A.  B.  [l.  s.] 

presence  of  C.  D.  [l.  s.J 

To  be  proved  or  acknowledged  as  a  deed.     (See  Acknowledgment  to  Bond, 
Appendix  No.  40.) 

Affidavit  of  justification,  as  in  No.  40. 


No.  114. 
ORDER  FOR  THE  APPOINTMENT  ON  FILING  BOND,  Ac. 

[Ante,  p.  455.] 


In  the  Matter  of  the  guardian- 
ship OF  THE  PERSON  AND  ESTATE  OF 
A.  B.,  A  MINOR. 


>  April  4,  1859. 


E.  F.  having  produced  the  bond  required  by  the  former  order  in  this  matter 
duly  executed  with  adequate  security,  and  on  filing  the  said  bond  and  the  affi- 
davit of  justification  thereto  annexed,  it  is  ordered  that  the  same  be  approved, 
and  that  the  said  E.  F.  be  appointed  guardian  of  the  person  and  estate  of  the 
said  A.  B.,  during  his  minority,  and  that  the  appointment  be  forthwith  made 
out  and  recorded  in  the  book  provided  for  that  purpose. 


APPENDIX  OF  FORMS.  545 

No.  115. 

LETTERS  OF  GUARDIANSHIP. 
[Ante,  p.  456.] 

The  People  of  the  state  of  New  York,  by  the  grace  of  God,  free  and 

[l.  s.]        independent : 

To of ,  send  greeting. 

Whereas  an  application  in  due  form  of  law  has  been  made  tosour  surrogate 
of  our  county  of ,  to  have  you  the  said appointed  the  guar- 
dian of  the  person  and  estate  of ,  a  minor  residing  in of 

the  age  of  fourteen  years ;  and  whereas  you,  the  said ,  have  consented 

to  become  such  guardian,  and  have  duly  executed  and  delivered  a  bond,  pur- 
suant to  law,  for  the  faithful  discharge  of  your  duty  as  such  guardian,  and  we 

being  satisfied  of  the  sufficiency  of  said  bond,  and  that  you,  the  said , 

are  a  good  and  respectable  person,  and  in  every  respect  competent  to  have  the 
custody  of  the  person  and  estate  of  said  minor,  do,  by  these  presents,  allow, 
constitute  and  appoint  you,  the  said ,  the  general  guardian  of  the  per- 
son and  estate  of  said  minor,  during  his  minority,  hereby  requiring  you,  the 
said  guardian,  to  do  and  perform  all  the  matters  and  things  required  by  law 
of  such  guardian,  and  to  render  an  account  of  all  moneys  and  property  received 
by  you,  and  of  the  application  thereof,  and  of  your  guardianship  in  all  respects, 
to  any  court  having  cognizance  thereof,  when  thereunto  required. 

In  testimony,  &c. 

Witness,  &c. 

Annexed  to  the  letter  is  the  following  extract  from  an  act  of  the  legislature 
of  New  York,  concerning  executors,  administrators,  guardians,  wards,  &c, 
passed  May  16,  1837,  page  534 : 

"  §  57.  Every  general  guardian  appointed  by  the  surrogate  shall,  annually 
after  such  appointment,  so  long  as  any  part  of  the  estate  or  the  income  or  pro- 
ceeds thereof  remain  in  his  hands  or  under  his  control,  file  in  the  office  of  the  sur- 
rogate appointing  him,  an  inventory  and  account,  under  oath,  of  his  guardianship 
and  of  the  amount  of  property  received  by  him  and  remaining  in  his  hands,  or 
invested  by  him,  and  the  manner  and  nature  of  such  investment  and  his  re- 
ceipts and  expenditures  in  form  of  debtor  and  creditor." 


No.  116. 

PETITION  ON  BEHALF  OF  AN  INFANT  UNDER  FOURTEEN  YEARS  OF  AGE 

FOR  APPOINTMENT  OF  GUARDIAN. 

To  the  surrogate  of  the  county  of  Oneida. 
The  petition  of  X.  Y.  respectfully  showeth  : 

That  A.  B.,  late  of  the  town  of  Vernon,  in  said  county,  deceased,  departed 
this  life  on  or  about  the day  of last,  without  having  ap- 

69 


546  APPENDIX  OF  FORMS. 

pointed  by  deed  or  will  any  guardian  for  his  children,  to  the  knowledge  or  be- 
lief of  your  petitioner :     That  he  left  four  children  under  the  age  of  fourteen 

years,  to  wit :     ,  of  the  age  of ;     ,  of  the  age  of 

;    ,  of  the  age  of ;  and ,  of  the  age  of 

:  all  of  whom  are  residents  of  the  town  of  V.,  in  said  county :  That 

the  said  infants  are  seised  in  fee  simple  as  tenants  in  common  of  a  certain  farm 
situate  in  V.,  in  said  county,  of  the  value  of  one  thousand  dollars,  the  annual 
rents  and  profits  of  which  are  about  sixty  dollars ;  and  are  also  entitled  to  a 
very  considerable  personal  estate,  amounting  to  about  the  sum  of  one  thousand 
dollars  each. 

Your  petitioner  further  showeth,  that  the  relatives  of  the  said  infants  resid- 
ing in  the  said  county  of  Oneida,  are  Sarah,  the  mother  of  the  said  infants,  with 
whom  they  now  reside  at  V.,  in  said  county,  A.  B.  and  C.  D.,  paternal  uncles, 
residing  in  Utica,  in  said  county,  G.  H.  and  J.  K.,  maternal  uncles,  residing  in 
Rome,  in  said  county ;  that  L.  M.  and  N.  0.  are  cousins  of  the  said  infants  and 
reside  at  the  same  place ;  that  they  have  no  grandfather  now  living  or  other 
relatives  residing  in  said  county,  to  the  knowledge  of  your  petitioner.     Your 

petitioner  prays  that may  be  appointed  guardian  of  the  person  and 

estate  of  the  said  infants  until  they  arrive  at  the  age  of  fourteen  years,  respect- 
ively, and  until  another  guardian  shall  be  appointed ;  and  for  that  purpose, 
that  a  day  may  be  assigned  for  the  hearing  of  the  said  matter,  and  that  an 
order  be  entered  directing  notice  to  be  given  of  such  hearing  to  the  relatives 
of  the  said  infants  residing  in  the  said  county. 

Your  petitioner  further  states  that is  a  suitable  person  to  be  ap- 
pointed such  guardian,  and  has  consented  to  act  as  such,  if  appointed,  and  to 
give  the  requisite  security.  Your  petitioner  therefore  prays  that  the  surrogate 
will  take  the  above  matter  into  consideration  and  grant  the  prayer  of  the  pe- 
tition. 

Dated.  X.  Y. 

Oneida  county,  ss:  The  above  petitioner  being  duly  sworn,  saith  that 
the  matters  of  fact  set  forth  in  the  foregoing  petition  are  true,  according  to  the 
best  of  his  knowledge  and  belief. 

Sworn,  &c.  X.  Y, 

Consent  of  guardian  same  as  for  minor  above,  No.  110. 


APPENDIX  OF  FORMS.  547 

No.  117. 
ORDER  ASSIGNING  A  DAY,  Ac. 


In  the  Matter  of  A.  B.,  C.  D.,  E. 

F.  AND  G.  H.,  INFANTS  UNDER  THE 
AGE  OF  FOURTEEN  YEARS,  AND  CHIL- 
DREN OF ,  DECEASED. 


►  June  10,  1859. 


On  filing  the  petition  of  X.  Y.  in  behalf  of  the  above  named  infants,  under 
the  age  of  fourteen  years,  and  residents  of  the  said  county,  praying  for  the  ap- 
pointment of  a  guardian  for  them,  respectively,  it  is  ordered  that  Monday,  the 
day  of ,  instant,  be  assigned  for  the  hearing  the  said  mat- 
ter, at  the  surrogate's  office,  in ,  in  said  county,  at  ten  o'clock  A.  M. 

of  the  said  day,  and  that  at  least  six  days  notice,  in  writing,  be  given  by  the 
petitioner  to  Sarah,  the  mother,  and  A.  B.,  &c.,  [naming  the  relatives  as  in  the 
petition,]  of  the  time  and  place  of  the  said  hearing. 


No.  118. 
Oneida  Surrogate's  Court 

In  the  Matter  of  A.  B.,  C.  D.,  E. 
F.  and  Gr.  H.,  infants  under  the 
age  of  fourteen  years,  and  chil- 
dren of  ,  de-  I 

CEASED.  I 

Take  notice,  that  a  petition  has  been  presented  to  the  surrogate  of  the  county 

of  Oneida  for  the  appointment  of ,  as  guardian  of  the  person  and 

estate  of  the  above  named  infants  until  they  respectively  arrive  at  the  of  four- 
teen years,  and  until  another  guardian  is  appointed  for  them,  and  that  the  said 

surrogate  has  assigned  the day  of ,  at  10  o'clock  A.  M.,  at 

his  office  in ,  for  hearing  the  said  matter. 

Dated.  X.  Y, 

To  [the  relatives,  &c,  naming  them.] 


548  APPENDIX  OF  FORMS. 

No.   119. 

AFFIDAVIT  OF  SERVICE. 

[Usual  Form.] 

ORDER  FOR  LEAVE,    &C. 

In  the  Matter  of  A.  B.,  &c, 
[as  before.] 

On  reading  and  filing  the  affidavit  of  X.  T.,  setting  forth  that  he  did,  on  the 

day  of ,  personally  serve  a  notice,  in  writing,  subscribed  by 

him  on ,  all  the  relatives  of  the  above  named  infants  who  reside  in 

the  county  of  Oneida,  on  whom  this  court  directed  notice  of  the  present  appli- 
cation to  be  served,  it  is  ordered  that  leave  be  given,  to  all  persons  interested, 
to  exhibit  their  proofs  and  allegations. 

Affidavit  of  infants'  circumstances,  same  as  No.  Ill,  as  far  as  the  facts  are  ap- 
plicable. 


No.  120. 
ORDER  FOR  APPOINTMENT  OF  GUARDIAN. 


In  the  Matter  of  the  Guardinship 
of  the  person  and   estate  of  A. 

B..  C.  D.,  E.  F.  AND  G.  H.,  INFANTS 
UNDER  THE  AGE  OF  FOURTEEN  TEARS, 
AND  CHILDREN  OF ,  DECEASED. 


June  10,  1859. 


On  filing  the  proofs  taken  on  the  application  in  this  matter,  by  which  it  ap- 
pears that  the  above  named  infants  are  under  the  age  of  fourteen  years,  and 
are  of  the  ages  following,  to  wit :     The  said  A.  B.  of  the  age  of  thirteen  years 

and  four  days,  &c,  &c. ;  that  they  are  the  children  of ,  deceased,  and 

are  residents  in ,  in  the  county  of ;  that  they  are  seised  as 

tenants  in  common  of  certain  real  estate  of  the  annual  value  of  one  hundred 

dollars,  and  are  possessed  of  personal  estate  of  the  value  of ;  and  it 

appearing  that is  a  suitable  person  to  be  appointed  guardian,  and  has 

consented  to  act  as  such,  if  appointed,  it  is  therefore  ordered  that  the  said 

be  appointed  guardian  of  the  persons  and  estate  of  the  said  infants,  respective- 
ly, until  they  arrive  at  the  age  of  fourteen  years,  and  until  other  guardi- 
ans be  appointed,  on  his  entering  into  a  bond  to  the  said  infants,  respectively, 
as  follows,  to  wit :  To  the  said  A.  B.,  in  the  penal  sum  of  $5000 ;  to  the  said 
C.  D.  in  the  penal  sum  of  $5500,  &c,  .fee,  with  sufficient  security  in  each  of  said 

bonds,  to  be  approved  of  by  the  surrogate,  conditioned  that  the  said 

will  faithfully,  in  all  things,  discharge  the  duties  of  a  guardian  to  the  said  in- 
fants, respectively,  according  to  law,  and  lender  a  true  and  just  account  of  all 


APPENDIX  OF  FORMS.  549 

moneys  and  property  received  by  him,  and  of  the  application  thereof,  and  of 
his  guardianship  in  all  respects,  to  any  court  having  cognizance  thereof,  when 
thereunto  required. 


No.  121. 
BOND,  ACKNOWLEDGMENT  AND  AFFIDAVIT  OF  JUSTIFICATION. 
The  same  as  in  No.  113. 


No.  122. 
ORDER  FOR  APPOINTMENT  ON  FILING  BOND. 


In  the   Matter  of  the   Guardian- 
ship of   the   person   and    estate  ^  Date. 
of  A.  B.,  &c.  &c.  [as  before.] 


Same  as  on  the  appointment  of  guardian  for  a  minor,  except  the  concludiug 
part,  in  which,  instead  of  during  their  minority,  say,  "until  they  respectively 
arrive  at  the  age  of  fourteen  years,  and  until  another  guardian  is  appointed  for 
them  respectively." 

Note.  The  letters  of  guardianship  are  the  same  as  No.  115,  except  the  in- 
fant is  described  as  under  the  age  of  fourteen,  to  wit :  of  [state  the  exact  age ;] 
and  instead  of  appointing  him  guardian  during  the  minority,  it  will  be,  until 
he  shall  arrive  at  the  age  of  fourteen  years,  and  until  another  guardian  shall  be 
appointed. 


No.  123. 
PETITION  TO  REMOVE  A  GUARDIAN. 
[Ante,  p.  460.] 

To  the  surrogate  of  the  county  of 

The  petition  of  ...» .,  of  the  town  of ,  respectfully  showeth : 

That  on  or  about  the day  of ,  in  the  year  of  our  Lord 

.,  one  A.  B.  was  duly  appointed  by  the  surrogate  of  the  said  county 

guardian  of  the  person  and  estate  of  C.  D.,  a  minor  under  the  age  of  twenty- 
one  years,  to  wit,  of  the  age  of ,  or  thereabouts;  that  the  said  A.  B., 

immediately  after  his  said  appointment,  possessed  himself  of  the  personal  effects 
of  the  said  minor,  and  assumed  the  control  of  the  rents  and  profits  of  the  real 
estate  of  the  said  minor,  as  your  petitioner  is  informed  and  believes ;  and  your 
petitioner  further  showeth,  that  since  his  said  appointment  the  said  A.  B.  has 
become  incompetent,  in  the  opinion  of  your  petitioner,  and  an  unsuitable  per- 
son to  perform  the  duties  of  such  guardian,  by  reason  of  the  habitual  intern- 


550  APPENDIX  OF  FORMS. 

perance  of  the  said  A.  B.,  in  the  use  of  ardent  spirits  or  other  intoxicating 
drink,  [or,  that  the  said  A.  B.  has  wasted  and  continues  to  waste  and  mis- 
apply the  estate  of  the  said  minor,  (or  other  complaint,  as  the  case  may  be ;)] 
that  your  petitioner  is  an  uncle  of  the  said  minor,  and  as  such  feels  an  interest 
in  his  welfare,  [or,  that  your  petitioner  is  one  of  the  sureties  for  the  said  A.  B. 
as  such  guardian  as  aforesaid,  and  is  apprehensive  that  he  shall  sustain  dam- 
ages by  reason  of  the  misconduct  of  the  said  A.  B.  in  his  guardianship.]  Your 
petitioner  therefore  prays  that  the  said  surrogate  will  examine  the  premises, 
and  that  a  citation  may  be  issued  to  the  said  A.  B.  requiring  him  to  appear 
before  the  said  surrogate  at  a  day  and  place  therein  to  be  mentioned,  to  show 
cause  why  he  should  not  be  removed  from  his  guardianship;  and  your  peti- 
tioner prays  for  such  other  relief  in  the  premises  as  the  nature  of  the  case  shall 
require. 

And  your  petitioner  will  ever  pray,  &c. 


Jurat,  as  in  No.  6. 


(Signed,)  L.  M. 


No.  124. 
ORDER  FOR  CITATION. 


In  the  Matter  of  the  Guardian- 
ship OF  THE  PERSON  AND  ESTATE 
OF    ...  ;  .....  A  MINOR. 


>  Date. 


On  reading  and  filing  the  petition  of  L.  M.,  a  relation  of  C.  D.,  a  minor, 
setting  forth,  among  other  things,  that  A.  B.,  heretofore  appointed  guardian 
of  the  person  and  estate  of  the  said  minor,  has  become  intemperate,  [or  as  the 
case  is,]  and  praying  that  the  said  A.  B.  may  be  removed  from  his  said  guard- 
ianship ;  and  the  surrogate,  on  examination,  being  satisfied  of  the  probable 
truth  of  the  said  complaint,  it  is  therefore  ordered  that  a  citation  forthwith 
issue  to  the  said  A.  B.,  requiring  him  to  appear  before  the  surrogate  at  his 

office  in ,  on  the   day  of next,  at ,  to 

show  cause  why  he  should  not  be  removed  from  his  said  guardianship. 


No.  125. 

CITATION. 

[Ante,    p.    460.] 

The  People  of  the  state  of  New  York,  to  A.  B.,  a  guardian  of  the  person 

[l.  s.]     and  estate  of  C:  D.,  of ,  a  minor,  greeting. 

Whereas  complaint  has  in  due  form  of  law  been  made  to  our  surrogate  of 
our  county  of  Washington,  that  you  the  said  A.  B.  have  become  incompetent 


APPENDIX  OP  FORMS.  551 

to  discharge  the  duties  of  the  said  office  by  reason  of  intemperance,  [or,  set 
out  the  charge  as  it  is  in  the  petition  in  substance,]  and  whereas  our  surrogate 

of  the  county  of is  satisfied  by  proof  of  the  probable  truth  of  the  said 

complaint ;  therefore  you  the  said  A.  B.  are  hereby  cited  and  required  to  ap- 
pear before  our  said  surrogate  at on ,  to  show  cause,  if  any 

you  have,  why  you  should  not  be  removed  from  your  said  guardianship  of  the 
said  minor.  v 

In  testimony  whereof,  we  have  caused  the  seal  of  office  of  our  said  surrogate 
to  be  hereto  affixed. 

Witness,  &c. 


No.  126. 
ORDER  FOR  REVOCATION. 

In  the  Matter  of  the   Guardian- 
ship    OF    THE     PERSON    AND    ESTATE   >    Date. 
OF ,  A   MINOR. 

On  filing  the  citation  heretofore  issued  in  this  matter,  and  returnable  here 
this  day,  and  an  affidavit  of  the  due  service  thereof  on  A.  B.,  guardian  of  the 
person  and  estate  of  the  above  minor,  f  and  the  said  A.  B.  omitting  to  appear, 
it  is  ordered  that  leave  be  given  to  the  said  complainant  to  proceed  ex  parte  ; 
whereupon  the  said  surrogate,  having  examined  the  proofs  and  allegations, 
and  being  satisfied  of  the  alleged  incompetency  of  the  said  A.  B.,  it  is  ordered, 
adjudged  and  decreed,  and  this  court,  by  virtue  of  the  power  vested  in  it,  doth 
order,  adjudge  and  decree,  that  the  said  A.  B.  be  removed  from  the  office  of 
guardian  of  the  said  minor,  and  that  the  appointment  heretofore  made  be  re- 
voked. 

If  the  guardian  appears  and  contests  the  removal,  the  order  will  be  as  in 
No.  127. 


No.  127. 
ORDER  FOR  A  REVOCATION  ON  A  HEARING. 


L.    M.    VS.    A.    B.,    GUARDIAN    OF    THE 

PERSON  AND  ESTATE  OF , 

A  MINOR,  &C. 


Date. 


The  same  as  last  to  the  t,  and  then  as  follows :  And  hereupon  the  parties 
respectively  appeared,  and  the  surrogate  having  heard  the  allegations  and 
proofs  of  the  respective  parties,  and  duly  considered  the  same,  and  being  satis- 
fied of  the  alleged  incompetency,  &c,  [same  as  above  in  No.  126.] 


552  APPENDIX  OF  FORMS. 

No.  128. 
REVOCATION. 
The  People  of  the  state  of  New  York,  to  A.  B.,  guardian  of  the  person 

[l.  s.]      and  estate  of  C.  D.,  a  minor,  greeting. 

Whereas  complaint  was  lately  made  to  our  surrogate  of  our  county  of  .... , 
touching  certain  misconduct  alleged  against  you  as  guardian  of  the  person  and 

estate  of ,  a  minor,  whereupon  a  citation  was  in  due  form  issued  by 

our  surrogate,  under  his  seal  of  office,  to  you,  the  said  guardian,  requiring  you 
to  appear  before  the  said  surrogate  at  a  day  now  past,  and  show  cause  why 
you  should  not  be  removed  from  the  guardianship  of  the  said  minor :  And 
whereas  the  said  citation  was  duly  served  on  you,  and  such  proceedings  have 
been  had  thereon,  that  at  a  surrogate's  court  held  before  our  said  surrogate  at 

,  on ,  it  was  ordered,  adjudged  and  decreed  that  for  certain 

misconduct  proved  to  the  satisfaction  of  the  said  surrogate,  you,  the  said  A.  B., 
should  be  removed  from  the  guardianship  of  the  person  and  estate  of  the  said 
minor,  as  by  the  said  in  part  recited  decretal  order,  still  remaining  before  our 
said  surrogate  of  record,  more  fully  and  at  large  appears :  Now  therefore,  be 
it  known,  that  in  pursuance  of  the  said  order  or  decree,  and  of  the  statute  in 
such  case  made  and  provided,  we  have  removed,  and  by  these  presents  do  re- 
move you,  the  said  A.  B.,  from  the  said  guardianship ;  and  we  do,  by  these 
presents,  revoke  the  appointment  heretofore  granted  to  you  as  guardian  of  the 
person  and  estate  of  the  said  minor. 

In  testimony,  whereof,  &c. 

"Witness,  &c. 

N.  B.  The  appointment  and  revocation  should  be  recorded  in  the  book  of 
guardians.     All  the  other  orders  should  be  entered  in  the  minute  book. 

The  forms  for  citing  guardians  to  account  are  so  near  like  those  against  ex- 
ecutors and  administrators,  that  it  has  been  deemed  inexpedient  to  publish 
them  separate.  The  reader  is  referred  to  the  forms  of  compelling  accounts 
from  executors  and  administrators. 


No.  129. 

PROCEEDINGS  FOR  THE  ADMEASUREMENT  OF  DOWER. 

[Ante,  p.  466.] 

PETITION   FOR   THE   ADMEASUREMENT   OF    DOWER. 

To  the  surrogate  of  the  county  of 

The  petition  of  Rachel  Jackson,  of  the  town  of ,  in  said  county, 

widow,  respectfully  showeth: 

That  your  petitioner  was,  on  the day  of ,  lawfully  mar- 
ried to  James  Jackson,  late  of ,  but  now  deceased,  and  lived 

and  cohabited  with  him  until  his  death,  which  occurred  on  the day 


APPENDIX  OP  FORMS.  553 

of That  the  said  James  Jackson  was,  during  such  marriage  and 

cohabitation,  seised  of  an  estate  of  inheritance  in  the  following  described  prem- 
ises, situate  in ,  in  said  county,  to  wit :    [Here  describe  the  land :]   That 

A.  B.,  C.  D.  and  E.  F.  claim  to  be  the  owners  of  the  said  land,  in  fee  simple, 
as  heirs  of  the  said  James  Jackson,  [or  by  purchase  from  him,  in  his  lifetime:] 
That  although  more  than  forty  days  have  elapsed  since  the  death  of  the  said 
James  Jackson,  the  late  husband  of  your  petitioner,  yet  her  dower  has  not 
been  assigned  to  her  in  the  said  lands,  or  in  any  part  thereof,  by  the  said  claim- 
ants, or  by  any  other  person,  although  the  same  has  been  requested  by  her. 

Your  petitioner  therefore  prays  for  an  order  of  this  court  that  admeasure- 
ment be  made  of  her  dower,  in  the  lands  and  premises  aforesaid,  and  that  three 
reputable  and  disinterested  freeholders  be  appointed  commissioners  for  the 
purpose  of  making  such  admeasurement,  pursuant  to  the  statute  in  such  case 
made  and  provided.  [If  any  of  the  owners  are  infants,  and  have  no  guardian, 
that  fact  should  be  stated,  and  the  petition  should  ask  for  the  appointment  of 
some  discreet  and  substantial  freeholder  as  guardian  for  such  minor,  for  the 
sole  purpose  of  appearing  for  and  taking  care  of  the  interests  of  such  infant,  in 
the  proceedings.] 

And  your  petitioner  will  ever  pray,  &c.  (Signed.) 

Dated. 

Jurat  as  in  No.  6. 


No.  130. 
FORM  OF  NOTICE  TO  BE  ANNEXED  TO  THE  PETITION. 

To  the  heirs  of  James  Jackson,  late  of ,  in  the  county  of , 

deceased,  and  such  other  persons  as  claim  a  freehold  estate  in  the  lands  de- 
scribed in  the  foregoing  [or  annexed]  petition : 

Please  to  take  notice  that  a  petition,  of  which  the  foregoing  [or  annexed]  is 

a  copy,  will  be  presented  to  the  surrogate  of  the  county  of ,  at  his 

office  in ,  in  said  county,  on  the day  of next,  at 

ten  o'clock  A.  M.,  and  a  motion  will  thereupon  be  made  for  the  order  and  re- 
lief therein  specified. 

Dated,  &c.  (Signed.) 

70 


554  APPENDIX  OF  FORMS. 

No.  131. 
ORDER  FOR  APPOINTMENT  OF  GUARDIAN  AD  LITEM. 

Saratoga  Surrogate's  Court. 


In  the  Matter  of  the  application  of 
Rachel  Jackson,  widow  of  James 
Jackson,  late  of   ,  de-  y  Date. 

CEASED,  FOR  ADMEASUREMENT  OF  HER 
DOWER. 


The  above  named  Rachel  Jackson  having  presented  her  petition,  praying  for 
an  order  that  admeasurement  be  made  to  her  of  her  dower  in  certain  lands, 
therein  described,  of  which  it  is  alleged  her  late  husband  was  seised  of  an  estate 
of  inheritance  during  the  coverture,  and  that  three  reputable  and  disinterested 
freeholders  be  appointed  for  the  purpose  of  such  admeasurement ;  and  it  appear- 
ing by  the  said  petition  that  A.  B.,  one  of  the  above  named  heirs  of  the  said 
James  Jackson,  deceased,  is  an  infant  under  the  age  of  twenty-one  years,  and 
has  no  guardian :  whereupon,  on  motion  of  the  said  Rachel  Jackson,  by  C.  S. 

Lester,  Esq.  her  counsel,  it  is  ordered  that  John  Doe,  of ,  a  discreet 

and  substantial  freeholder,  be  and  he  hereby  is  appointed  guardian  for  such  in- 
fant, for  the  sole  purpose  of  appearing  for  and  taking  care  of  his  interest  in 
these  proceedings. 

Note. — A  copy  of  this  order,  duly  certified,  should  be  delivered  to  the  guar- 
dian as  his  authority.  No  other  appointment  is  requisite ;  though  sometimes 
such  appointment  is  made  out. 


No.  132. 

ORDER  FOR  ADMEASUREMENT  AND  THE  APPOINTMENT  OF 
COMMISSIONERS. 

Title.     (As  in  No.  131.)  Date- 
On  reading  and  filing  the  petition  of  the  above  named  Rachel  Jackson,  bear- 
ing date  the day  of ,  praying  for  admeasurement  of  her 

dower  in  the  lands  therein  mentioned,  and  for  the  appointment  of  commission- 
ers for  the  purpose  of  making  such  admeasurement ;  and  on  reading  and  filing 
an  affidavit  showing  the  due  service  of  the  said  petition,  and  the  notice  thereto 
subjoined,  on  the  persons  therein  mentioned  as  heirs,  or  owners,  [as  the  case 
may  be,]  and  the  said  parties  having  appeared  in  pursuance  of  said  notice : 
whereupon,  after  hearing  the  proofs  and  allegations  of  the  parties,  and  the  sur- 
rogate being  satisfied  that  the  facts  set  forth  in  the  said  petition  are  true,  it  is 
ordered  that  admeasurement  of  the  dower  of  the  said  widow  be  made  accord- 
ing to  the  prayer  of  the  said  petition,  and  that  L.  M.  of  . . . ,  and  N.  O. 

of ,  and  P.  Q.  of ,  three  disinterested  freeholders,  be  and 


APPENDIX  OP  FORMS.  555 

they  are  hereby  appointed  commissioners  for  the  purpose  of  making  such  ad- 
measurement, according  to  the  statute  in  such  case  made  and  provided  ;  which 

said  lands,  in  which  said  dower  is  to  be  admeasured,  are  situate  in , 

in  said  county,  and  are  bounded  and  described  as  follows,  to  wit:  [Here  set 
out  a  full  description  of  the  premises.]  And  it  is  further  ordered  that  the 
said  commissioners  report  to  this  court,  on ,  at ,  the  said  ad- 
measurement and  proceedings. 

Note. — A  copy  of  this  order,  duly  authenticated,  is  all  the  authority  required. 
No  other  appointment  is  necessary.  The  statute  speaks  only  of  an  appoint- 
ment by  order.     (2  R.  S.  489,  §§  9,  10.) 


No.  133. 
OATH  OF  COMMISSIONER. 

Title.     (As  in  No.  131.) 

I,  L.  M.,  N.  0.,  P.  Q.,  appointed  commissioner,  to  make  admeasurement  of 
dower  in  the  above  matter,  do  swear  that  I  will  faithfully,  honestly  and  im- 
partially discharge  the  duty  and  execute  the  trust  reposed  in  me  by  the  said 
appointment. 

Dated.  (Signed.) 


No.  134. 
REPORT  OP  COMMISSIONERS. 

Title.     (As  in  No.  131.) 

To  the  surrogate  of  the  county  of 

The  undersigned  commissioners,  appointed  to  make  admeasurement  of 
dower  in  this  matter,  respectfully  report,  that  having  first  taken  the  oath  re- 
quired by  law,  they  did,  on  the  ........  day  of ,  meet  at , 

on  the  premises  hereinafter  described,  to  discharge  the  duty  and  execute  the 
trust  reposed  in  them ;  that  all  the  parties  to  this  proceeding  appeared  at  the 
time  and  place  aforesaid  ;  that  the  said  commissioners  caused  a  survey  of  the 
said  land  to  be  made  in  the  presence  of  the  parties,  that  is  to  say :  [here  de- 
scribe the  whole  premises  according  to  the  survey,]  a  map  of  which  is  hereto 
annexed.  And  they  do  further  report,  that  at  the  same  time,  and  in  presence 
of  the  same  parties,  they  admeasured  and  laid  off  to  the  said  widow  for  her 
dower  the  one-third  part  of  the  said  premises  embraced  in  said  order,  desig- 
nating the  same  by  permanent  monuments ;  and  which  said  part,  so  admeas- 
ured and  laid  off  to  said  widow  for  her  dower,  is  described  as  follows :  [here 
set  out  the  description,!  as  will  also  appear  by  the  rriap  hereto  annexed. 


556  APPENDIX  OP  FOKMS. 

They  further  report,  that  the  following  are  the  items  of  the  charges  attending 
the  said  admeasurement :  [Here  state  each  item.] 

All  which  is  respectfully  submitted. 

Dated.  (Signed.) 


No.  135. 
ORDER  TO  CONFIRM  REPORT. 
Title.     (As  in  No.  131.)  Date. 

On  reading  and  filing  the  report  of ,  the  commissioners  appointed 

to  admeasure  the  dower  of  the  widow  in  this  matter,  and  the  map  accom- 
panying the  same,  whereby  it  appears  that  they  have  admeasured  and  laid 
off  the  dower  of  the  said  widow,  according  to  the  order  heretofore  made ;  and 
after  hearing  the  respective  parties  by  their  counsel,  and  no  sufficient  reason 
appearing  to  the  contrary,  it  is  ordered,  on  motion  of  the  said  widow,  that  the 
said  report  and  admeasurement  be  in  all  things  confirmed,  and  that  the  same 
be  filed  and  entered  at  large  in  the  book  provided  for  that  purpose. 

Note. — These  proceedings  can  be  easily  varied,  so  as  to  conform  to  a  differ- 
ent state  of  things. 


AN  ACT 

RESPECTING  THE  FEES  OF  SURROGATES. 
Passed  Mat  7,  1844. 


[3  R.  S.  919,  §  22,  5th  ed.    L.  of  1844,  p.  445.     Ante,  p.  339.] 

The  People  of  the  state  of  New  York,  represented  in  senate  and  assembly,  do 
enact  asfoUows: 

§  1.  Section  thirty-two  of  title  three  of  chapter  ten  of  part  tliird  of  the 
Revised  Statutes,  is  hereby  repealed. 

§  2.  For  the  following  services,  hereafter  done  or  performed  by  surrogates, 
the  following  fees  shall  be  allowed,  nor  shall  they  be  entitled  to  receive  any 
other  fees  therefor : 

Drawing  proof  of  a  will  when  contested,  or  any  other  proceeding  before 
him,  for  which  no  specific  compensation  is  provided,  fifteen  cents  for  every 
folio. 

Drawing  every  petition  in  any  proceeding  before  him,  not  otherwise  pro- 
vided for,  including  the  affidavit  of  the  truth  of  the  facts  stated  therein,  fifty 
cents. 

Every  certificate  of  the  proof  of  a  will,  when  contested,  endorsed  thereon, 
including  the  seal,  fifty  cents ;  and  for  any  certificate  upon  exemplifications 
of  records  or  papers  filed  in  his  office,  or  upon  the  papers  transmitted  upon 
appeal,  including  the  seal,  fifty  cents. 

Drawing,  copying  and  approving  of  every  bond  required  by  law,  fifty  cents. 

Drawing,  copying  and  recording  every  necessary  paper,  and  drawing  and 
entering  every  necessary  order,  and  for  rendering  every  other  service  neces- 
sary to  complete  proceedings  on  the  appointment  of  a  general  guardian  of  a 
minor,  three  dollars ;  and  for  the  like  services  in  appointing  the  same  person 
guardian  for  any  other  minor  of  the  same  family  at  the  same  time,  one  dollar 
and  fifty  cents. 

Drawing,  entering  and  filing  a  renunciation,  in  cases  where  the  same  may 
be  made  by  law,  twenty-five  cents. 


558  FEES  OF  SURROGATES. 

A  citation  or  summons,  in  cases  not  otherwise  provided  for,  to  all  parties  in 

the  same  proceeding,  residing  in  any  one  county,  including  the  seal,  fifty 

cents ;  and  for  a  citation  to  all  parties  in  any  other  county,  twenty-five  cents. 

A  subpoena  for  all  witnesses  in  the  same  proceeding,  residing  in  one  county, 

including  the  seal,  twenty-five  cents. 

For  every  copy  of  a  citation  and  subpoena,  furnished  by  a  surrogate,  twelve 
and  one-half  cents,  and  every  such  copy  of  citation  shall  be  signed  by  the 
surrogate. 

A  warrant  of  commitment  or  attachment,  including  the  seal,  fifty  cents. 
A  discharge  of  any  person  committed,  including  the  seal,  fifty  cents. 
For  drawing  and  taking  every  necessary  affidavit,  upon  the  return  of  an 
inventory,  fifty  cents. 

For  serving  notice  of  any  revocation,  or  other  order  or  proceeding  required 
by  law  to  be  served,  twenty-five  cents. 

For  swearing  each  witness  in  cases  where  a  gross  sum  is  not  allowed, 
twelve  and  one-half  cents. 

For  searching  the  records  of  his  office  for  any  one  year,  twelve  and  one-half 
cents ;  and  for  every  additional  year,  six  cents ;  but  no  more  than  twenty-five 
cents  shall  be  charged  or  received  for  any  one  search. 

Recording  every  will  with  the  proof  thereof,  letters  testamentary,  letters  of 
administration,  report  of  commissioners  for  the  admeasurement  of  dower,  and 
every  other  proceeding  required  by  law  to  be  recorded,  including  the  certifi- 
cate, if  any,  at  the  foot  of  the  record,  when  the  recording  is  not  specifically 
provided  for  in  this  act,  ten  cents  for  every  folio. 

For  the  translation  of  any  will  from  any  other  than  the  English  language, 
ten  cents  for  every  folio. 

Copies  and  exemplifications  of  any  record,  proceeding  or  order  had  or  made 
before  him,  or  of  any  papers  filed  in  his  office,  transmitted  on  an  appeal  or 
furnished  to  any  party  on  his  request,  six  cents  for  every  folio,  to  be  paid  by 
the  person  requesting  them. 

For  making,  drawing,  entering  and  recording  every  order  for  the  sale  of 
real  estate,  and  every  final  order  or  decree  on  the  final  settlement  of  accounts, 
one  dollar  and  fifty  cents ;  and  for  the  confirmation  of  the  sale  of  real  estate, 
seventy-five  cents;  and  for  making,  drawing,  entering  and  recording  any 
other  order  or  decree,  when  the  same  is  not  otherwise  provided  for,  twenty- 
five  cents. 

Hearing  and  determining,  when  the  proof  of  a  will  or  the  right  to  adminis- 
tration or  appointing  a  guardian  is  contested,  two  dollars. 

Taking,  stating  and  determining  upon  an  account  rendered  upon  a  final  set- 
tlement, or  determining  and  deciding  the  distribution  of  personal  estate,  if 
contested,  two  dollars  for  each  day  necessarily  spent  therein,  not  exceeding 
three  days. 

For  hearing  and  determining  any  objections  to  the  appointment  of  an  exec- 
utor or  administrator,  or  any  application  for  his  removal,  or  for  the  removal 


FEES  OF  SURROGATES.  559 

of  any  guardian;  or  any  application  to  annul  the  probate  of  a  will,  two 
dollars. 

For  hearing  and  determining  upon  an  application  to  lease,  mortgage  or  sell 
real  estate,  two  dollars. 

For  drawing  and  recording  all  necessary  papers,  and  drawing  and  entering 
all  necessary  orders,  on  applications  for  letters  of  administration,  when  not 
contested,  and  for  all  services  necessary  to  complete  the  appointment  of  ad- 
ministrators, and  for  the  appointment  of  appraisers,  five  dollars ;  but  in  cases 
where  a  citation  is  necessary,  seventy-five  cents  in  addition. 

For  investing,  for  the  benefit  of  any  minor,  any  legacies,  or  the  distributive 
shares  of  the  estate  of  any  deceased  person,  in  the  stocks  of  this  state  or  of  the 
United  States,  one  per  cent  for  a  sum  not  exceeding  two  hundred  dollars ; 
and  for  any  excess,  one-quarter  of  one  per  cent ;  for  investing  the  same  on 
bond  and  mortgage  of  real  estate,  one-half  of  one  per  cent,  for  a  sum  not  ex- 
ceeding two  hundred  dollars,  and  one  quarter  of  one  per  cent  for  any  excess. 

For  receiving  the  interest  on  such  investments,  and  paying  over  the  same 
for  the  support  and  education  of  such  minor,  one-half  of  one  per  cent. 

Appointing  a  guardian  to  defend  any  infant  who  shall  be  a  party  to  any 
proceeding,  fifty  cents ;  but  where  there  is  more  than  one  minor  of  the  same 
family,  and  the  same  guardian  is  appointed  for  all,  twenty-five  cents  for  each 
additional  minor ;  and  no  greater  or  other  fee  shall  be  charged  for  any  service 
in  relation  to  such  appointment. 

Hearing  and  determining  upon  the  report  of  commissioners  for  the  admeas- 
urement of  dower,  one  dollar. 

For  distributing  any  moneys  brought  into  his  office  on  the  sale  of  real  estate, 
two  per  cent. ;  but  such  commission  shall  not  in  any  case  exceed  twenty  dol- 
lars for  distributing  the  whole  money  raised  by  such  sale,  and  no  executors  or. 
other  persons,  authorized  to  sell  any  real  estate,  by  order  of  any  surrogate, 
shall  be  allowed  any  commission  for  receiving  or  paying  to  the  surrogate  the 
proceeds  of  such  sale ;  but  shall  be  allowed  their  expenses  in  conducting  such 
sale,  including  two  dollars  for  every  deed  prepared  and  executed  by  them 
thereon,  and  a  compensation  not  exceeding  two  dollars  a  day  for  the  time 
necessarily  occupied  in  such  sale. 

But  no  fee  shall  be  taken  by  any  surrogate,  in  any  case  when  it  shall  ap- 
pear to  him,  by  the  oath  of  the  party  applying  for  letters  testamentary  or  of 
administration,  that  the  goods,  chattels  and  credits  do  not  exceed  the  value  of 
fifty  dollars,  nor  shall  he  take  any  fee  for  copying  any  paper  drawn  by  him  or 
filed  in  his  office,  except  as  above  provided. 

For  drawing  and  recording  all  necessary  petitions,  dep  ositions,  affidavits,  ci- 
tations and  other  papers,  and  for  drawing  and  entering  all  necessary  orders  and 
decrees,  administering  oaths,  appointing  guardians  ad  litem,  and  appointing 
appraisers,  and  for  rendering  every  other  necessary  service,  in  cases  of  proof 
of  will  and  issuing  letters  testamentary,  when  not  contested,  and  the  will  does 
not  exceed  fifteen  folios,  surrogates  shall  receive  twelve  dollars ;  and  where 


560  FEES  OF  SURROGATES. 

the  will  exceeds  fifteen  folios,  ten  cents  per  folio  for  recording  such  excess, 
and  six  cents  per  folio  for  the  copy  of  such  excess  to  be  annexed  to  the  letters 
testamentary. 

For  all  fees  on  filing  the  annual  account  of  any  guardian,  when  the  surrogate 
shall  draw  and  take  the  affidavit  of  the  guardian,  and  for  examining  such  ac- 
counts, fifty  cents ;  but  when  the  same  shall  not  be  drawn  nor  taken  by  him, 
he  shall  charge  no  fees. 

No  charge  shall  be  made  for  drawing,  copying  or  recording  his  bill  of  fees 
in  any  case. 

§  3.  The  fee  for  filing  any  paper  in  the  surrogate's  office  is  abolished. 


INDEX. 


A 

ABATEMENT. 

when  legacies  abate,  382. 
ACCOUNT, 

judge  of  court  of  probates,  jurisdiction  over,  29. 

surrogate's  jurisdiction  over,  36. 

surrogate  required  to  file  accounts,  51. 

executors  and  administrators  may  be  cited  to  account,  414. 

mode  of  proceeding,  415. 

what  petition  to  contain,  415. 

how  it  may  be  resisted,  416. 

executors,  &c.  may  show  no  assets,  417. 

jurisdiction  over,  more  ample  than  in  the  ecclesiastical  courts,  418, 419. 

cases  of  equitable  conversion,  420. 

charge  on  real  estate,  420. 

when  a  suit  by  creditor,  &c.  a  basis  for  a  final  settlement,  421. 

proceedings  thereon,  422  et  seq. 

petition,  and  what  it  must  set  forth,  423. 

citation  thereon,  how  served,  423. 

how  upon  infants,  424. 

all  interested  may  attend  the  accounting,  426. 

and  have  subpoenas  for  witnesses,  426. 

account  and  vouchers,  when  to  be  presented,  427. 

what  it  should  contain,  427,  428. 

oath  to  account,  form  of,  428. 

principles  on  which  to  be  stated,  429. 

debt  claimed  by  executor  or  administrator  to  be  proved  to  and  allowed 

by  surrogate,  430. 
creditors  to  be  paid  pro  rata,  431. 
proceedings  may  be  adjourned,  432. 

n 


562 


INDEX. 


ACCOUNT— continued. 

auditors  may  be  appointed,  432. 

their  power  and  duty,  432,  433. 

final  accounting  after  18  months,  421. 

proceedings  on  do.,  422  et  seq. 

order  to  account,  when  to  be  entered,  422. 

petition  for  general  account,  what  to  contain,  423. 

citation,  form  of,  and  how  served,  423. 

case  of  infants,  guardian  ad  litem,  424,  425. 

mode  of  rendering  the  account,  426. 

what  to  contain,  427. 

oath  to  do.,  and  vouchers  of,  428. 

principles  on  which  to  be  stated,  432. 

objections,  how  to  be  stated,  432. 

debts  claimed  by  executors  or  administrators,  to  be  proved  to  and 

allowed  by  surrogate,  430. 
citation  for  do.  how  served,  430,  431. 
effect  of  final  account,  434,  435. 
decree  to  be  made  thereon,  436. 
may  order  choses  to  be  assigned,  436,  437. 
decree  need  not  be  enrolled,  437. 
must  be  entered  at  large  in  minutes,  437. 
may  be  docketed,  when,  438. 
mode  of  enforcing  it,  438,  439. 
of  voluntary  accounting,  440  et  seq. 
decree  operates  to  discharge  executor,  &c.  440. 
costs  of  accounting,  442. 
surrogates'  fees,  442. 
accounting  by  guardian,  463. 
ACKNOWLEDGMENT 

of  signature  by  testator  to  his  will,  100. 
of  bonds  taken  by  surrogate,  225. 
form  of,  225.     (App.  No.  40.) 
ADEMPTION, 

an  incident  of  specific  legacy,  351. 
when  it  occurs,  351,  352.     See  Legacy. 
ADJOURNMENT. 

surrogate  may  adjourn,  35,  432. 
ADMEASUREMENT  OP  DOWER.    See  Dower,  564  et  seq. 
ADMINISTRATOR, 

jurisdiction  over  originally,  25,  26. 

in  surrogates'  courts,  36. 

in  what  cases,  184. 

different  kinds  of,  at  common  law,  184,  185,  219. 


INDEX.  563 

ADMINISTRATOR— continued. 

cum  testamento  annexo,  185,  207. 

de  bonis  non,  185,  211. 

durante  minore  estate,  185,  214. 

durante  absentia,  186,  219. 

ad  colligendum,  186,  219,  220. 

what  surrogate  has  jurisdiction,  187. 

the  persons  to  whom  to  be  granted,  188. 

to  the  husband  of  his  wife's  estate,  190. 

when  husband  and  wife  drowned  by  the  same  accident,  how  granted, 
192. 

when  the  widow  is  preferred,  192. 

effect  of  divorce  on  her  rights,  193,  194. 

rights  of  next  of  kin  to,  194  et  seq. 
of  guardian  of  minors,  197. 

who  to  be  excluded,  197. 

to  a  creditor,  when  granted,  199. 

sole  administration  preferred,  198. 

when  to  public  administrator,  200. 

when  to  any  competent  person,  200. 

practice  in  granting  administration,  201. 

where  citation  is  required,  203. 

grounds  of  objection  to  grant,  205. 

cum  testamento  annexo,  207. 

will  of  testator  to  be  observed,  209. 

parties  having  prior  rights  must  be  cited,  210. 

de  bonis  non,  211. 

durante  minore  wtate,  214. 

absentia  et  pendente  lite,  219. 
collecta,  219,  220. 
other  special  administration,  222  et  seq. 

his  power  and  duty  as  to  inventory.     See  Inventory,  243  et  seq. 
bond  to  be  given  by,  202,  224. 
form  of  bond,  App.  Nos.  39  to  42. 
effect  of  letters  of,  while  unrevoked,  225. 
when  and  how  revoked,  234,  236,  &c. 
on  whose  application,  236,  237-240. 
distinction  between  a  grant  void  and  voidable,  240. 
revocation  of  letters  by  appeal,  241. 
the  effect  on  intermediate  acts,  242. 

duty  with  respect  to  inventory.     See  Inventory,  243  et  seq. 
how  compelled  to  return  inventory,  263,  264. 
his  oath  to  inventory,  262. 
consequences  of  refusing  to  return  inventory,  264. 


564  INDEX. 

ADMINISTRATOR— continued. 

where  further  inventory  required,  266. 
of  collecting  and  disposing  of  effects,  267. 
may  sell  on  credit,  267. 
may  compound  doubtful  claims,  268. 
must  pay  funeral  expenses,  269. 
probate  expenses,  273. 
debts,  order  of,  273,  293.' 

due  U.  S.  274,  277. 
taxes  assessed  on  estate,  277. 
judgment  docketed,  279,  281. 
his  own  expenses,  237. 
of  payment  of  inferior  before  superior  debts,  290. 
sale  of  personal  assets,  292. 
advertising  for  claims,  294. 
when  to  pay  do.  295. 
cannot  retain  for  his  own  debt,  303. 
proceedings  of,  to  sell  real  estate  to  pay  debts,  306  et  seq. 
when  to  render  account,  314. 
how  made  and  verified,  315. 
must  have  his  own  debt  proved  and  allowed,  318. 
his  admissions  not  evidence  against  heirs,  318. 
his  duty  under  statute  of  distributions,  395  et  seq. 

with  respect  to  legacies  and  distributive  shares,  410,  411. 
may  be  required  to  account,  412,  413,  415. 
what  must  be  stated  in  petition,  415. 

grounds  of  resisting  claims,  415,  417,  418.     See  titles  Executor.     Sur- 
rogate.    Petition.     Inventory.     Account. 
ADVANCEMENT, 

what  constitutes,  and  the  effects  thereof,  398. 
it  takes  nothing  from  the  child,  401. 

applies  only  to  the  actual  intestacy,  402.     See  title  Distribution,  398, 
410. 
ADVERTISING 

for  claims,  294  et  seq. 
object  of  such  call,  425,  426. 
AGE 

requisite  to  make  a  will,  65. 
ALIEN, 

not  being  an  inhabitant,  incapable  to  serve  as  executor,  134. 
ALLOWANCES 

to  executors,  administrators  and  guardians,  429. 
ALLEGATION, 

nature  and  form  of,  231. 


INDEX.  565 


AMBIGUITY, 

how  and  when  explained,  376. 

difference  between  lateral  and  patent,  377. 
APPRAISERS, 

by  whom  appointed,  248. 

how  far  under  control  of  surrogate,  249. 

in  whose  presence  inventory  to  be  made,  250. 

what  are  exempt  articles,  251. 

what  becomes  of  them,  252. 

power  and  discretion  of  appraisers,  253. 

compensation  to  be  allowed,  248. 

may  be  controlled  by  surrogate,  249. 
ASSENT 

of  executor  to  a  legacy,  when  necessary,  380. 

how  compelled,  if  improperly  withheld,  380. 
ASSETS.     See  Inventory,  243,  248,  251,  256. 
ATTACHMENT, 

when  to  be  issued,  44. 

to  enforce  payment  of  costs,  233. 

for  not  returning  inventory,  264. 
ATTESTATION  CLAUSE  OF  WILL, 

object  of,  108. 

form  of,  108.     (App.  No.  1.) 

not  absolutely  required,  108. 

a  matter  of  prudence  to  have  it,  109. 
ATTORNEY, 

when  recognized  as  officer  in  surrogate's  courts,  41,  43. 
ATTORNEY  GENERAL, 

when  to  be  cited  in  cases  of  intestacy,  206. 
AUDITORS,  when  to  be  appointed,  432,  433. 

their  power  and  duties.  432,  433. 

how  many  to  be  appointed,  432. 

their  allowances  per  day,  432. 

parties  may  appear  before  them,  433. 

have  no  power  to  administer  oath,  433. 

their  report  subject  to  approval  of  surrogate,  432,  433. 

B 

BEQUEST.     See  Legacy. 
BIDDINGS 

on  sale  of  real  estate,  when  opened,  327. 
BLIND 

capable  of  making  a  will,  69,  70. 


566  INDEX' 

BOND 

to  be  given  by  surrogate  on  his  election,  55. 

given  by  administrator  and  collector,  202,  220,  224. 

when  by  executor  and  its  form,  224. 

for  whose  benefit  and  how  enforced,  225. 

what  a  breach  of  it,  225. 

must  be  proved  or  acknowledged,  225. 

order  of  payment  of,  284,  &c. 

when  secured  by  mortgage,  288. 

when  to  be  given  by  legatee,  410. 

and  when  not,  412. 

contents  of  bond  when  given,  410. 

of  guardian,  455. 
BOOKS 

to  be  kept  by  surrogate,  50,  51. 
BROTHERS  AND  SISTERS, 

rights  of  to  administration,  189. 

under  statute  of  distributions,  396,  397. 

c 

CAVEAT, 

a  mere  cautionary  act,  230. 
in  force  for  three  months,  230. 

probate  granted  in  spite  of  a  caveat,  not  void  but  voidable,  230. 
CHANCELLOR, 

former  jurisdiction  over  lunatics,  &c,  88,  89. 
CHARGE  ON  REAL  ESTATE, 

how  created  by  will,  328,  329. 

when  it  creates  a  fee  without  other  words,  371. 
CHILDREN, 

right  of  to  letters  of  administration,  189. 

legacy  to,  who  included,  375. 

rights  of  under  statute  of  distributions,  399. 

when  take  per  capita  and  when  per  stirpes,  400. 

advancement  to,  398,  401. 
CLAIMS, 

advertising  for,  294. 

when  disputed  to  be  referred,  294. 

surrogate  no  power  to  try  contested  ones,  299. 
CITATION, 

one  of  the  forms  of  process,  48. 

to  be  issued  to  attend  proof  of  will,  152. 

how  directed  and  how  served,  153,  154. 

how  served  on  a  minor,  157. 

on  a  married  woman,  158. 


INDEX.  567 

CITATION— continued. 

to  obtain  letters  of  administration,  203. 

its  form  and  mode  of  service,  204. 

when  to  be  served  on  attorney  general,  206. 

on  allegation  to  revoke  probate,  231. 

to  revoke  letters  testamentary,  234. 
administration,  237. 

to  render  final  account,  423. 

how  to  be  served,  423  et  seq. 
CODICIL, 

what  it  is  and  how  executed,  58. 

included  in  term  will,  (which  see)  98,  117. 
COLLECTOR.     See  Administrator,  219,  220,  &c. 

his  power  and  authority,  220,  221. 

required  to  take  oath  and  give  a  bond,  220,  224. 

his  right  to  institute  suits,  221. 

must  make  and  return  an  inventory,  221. 
COMMISSION, 

when  to  issue  to  take  testimony,  45. 

to  prove  a  will,  &c.  165. 
COMMISSIONS 

of  executors  and  administrators,  429,  463,  4. 

when  first  allowed,  429. 

rate  of  and  how  computed,  429. 

on  sales  of  real  estate,  by  order  of  surrogate,  339. 
CONDITION 

of  two  kinds,  precedent  and  subsequent,  358. 
CONDITIONAL  LEGACIES, 

how  defined,  358. 

by  what  words  condition  created,  358,  359. 

when  void,  359. 

when  in  terrorem  only,  359. 

condition  against  good  morals  void,  359. 

legacies  to  executors  conditional  when,  360. 
CONSANGUINITY, 

lineal  and  collateral  defined,  195. 
CONSENT  OF  HUSBAND 

that  his  wife  may  be  appointed  executor,  135. 
CONTRACT 

for  the  purchase  of  land,  the  interest  of  deceased  therein  may  be  sold 
by  order  of  surrogate  to  pay  debts,  331  et  seq. 
CONTINGENT  LEGACIES, 

in  opposition  to  vested,  349,  353. 


568 


INDEX. 


COSTS, 

when  allowable  in  surrogates'  courts,  42. 

at  what  rate  taxable,  42,  43. 

when  allowable,  183,  233,  296,  339,  470. 
COUNTY  JUDGE, 

when  to  act  as  surrogate,  41. 
CREDITOR, 

when  entitled  to  letters  of  administration,  199. 

has  a  stronger  claim  than  legatees,  293. 

to  exhibit  his  claim  with  vouchers,  294  et  seq. 

can  compel  executors  or  administrators  to  proceed  to  sell  real  estate, 
344  et  seq. 

remedy  before  surrogate,  416  et  seq. 

defense  thereto,  417. 

a  necessary  party  to  a  general  account,  422,  425. 
CRIMES 

which  disqualify,  95  to  97. 
CUMULATIVE  LEGACIES, 

how  explained,  362. 

rules  with  respect  to,  362.     See  title  Legacy. 

D 

DEAF  AND  DUMB, 

capacity  to  make  will,  68,  69. 
DEBTS 

of  the  deceased,  when  to  be  paid,  273. 

order  of  preference,  274. 

due  the  U.  S.  preferred,  274,  276. 

due  to  the  state  for  taxes,  &c,  277. 

by  judgment,  in  what  order,  179,  280. 

object  of  docketing,  282. 

how  at  common  law,  286. 

secured  by  mortgage,  287,  288. 

rule  as  to  joint  debts,  287. 

advertising  for,  297  et  seq. 

when  barred  by  short  limitation,  296. 

omission  to  present,  298. 

no  power  in  surrogate  to  try  contested,  299. 

enforcing  payment  of,  301. 

due  to  executor  or  administrator,  how  proved,  303. 

when  real  estate  may  be  sold  to  pay,  306,  &c. 

admission  of  executors  or  administrators  not  evidence  against  heirs,  318. 

established,  to  be  entered  in  a  book,  319. 

how  payment  of  enforced,  or  how  resisted,  416. 


INDEX.  569 

DECREE, 

to  be  entered  in  a  book  to  be  kept  for  that  purpose,  51. 

surrogate  cannot  open  final  decree,  338. 

may  set  aside  defaults  for  irregularity,  49. 
DEMONSTRATIVE  LEGACIES 

defined,  352. 
DEVISE, 

what  it  is,  56,  62. 

passes  whatever  estate  testator  has  at  his  death,  63. 

rule  with  respect  to,  formerly,  130. 

what  words  carry  a  fee,  371. 
DEVISEE 

may  have  the  will  proved,  152. 

a  necessary  party  to  a  sale  of  real  estate,  by  order  of  surrogate,  309. 

may  resist  the  sale,  335. 
DISTRICT  ATTORNEY, 

when  to  act  as  surrogate,  54. 
DISTRIBUTIVE  SHARES, 

person  entitled  thereto  can  enforce  payment  before  surrogate,  410. 
DISTRIBUTION, 

surrogate  has  power  to  enforce,  36. 

of  estates  according  to  the  law  of  domicil,  60. 

of  proceeds  on  sale  of  real  estate,  333  et  seq. 

under  the  revised  statutes,  395  et  seq. 

provisions  of  the  statute  of,  396,  397,  398. 

rights  of  widow,  396. 

of  father  and  mother,  397. 
of  children,  396,  400. 

descendants  of  an  illegitimate,  397. 

when  by  representation,  397. 

rights  of  the  half  blood,  397. 

posthumous  child,  398. 

advancement,  doctrine  of,  398,  400. 

rights  of  next  of  kin,  396,  400. 

married  females,  399. 

enforcing  payment  of,  409,  410. 

when  a  bond  is  required,  410. 

when  before  the  expiration  of  a  year,  411. 

mode  of  application,  412. 

how  order  to  be  served,  415. 

what  may  be  shown  in  bar,  416. 
DIVORCE, 

effect  of  on  right  to  administer,  193,  194. 

72 


570  INDEX. 

DOMICIL, 

its  effect  on  wills  and  successions,  163,  59. 
DONATIO  MORTIS  CAUSA, 

nature  of,  417. 
DOWER, 

when  surrogate  first  had  jurisdiction  of,  31. 

claim  of  extinguished  by  sale  of  real  estate,  329. 

how  compensated,  and  proceedings  for,  333,  334. 

admeasurement  of,  464  et  seq. 

if  possession  not  surrendered,  widow  must  resort  to  an  action,  465. 

must  apply  within  forty  days  of  the  death  of  her  husband,  by  petition, 
466. 

what  it  should  state,  466. 

to  be  served  twenty  days  before  presented,  466. 

three  commisssioners  to  assign  it,  467. 

oath  to  be  taken  by,  467. 

principles  on  which  dower  to  be  assigned,  468. 

"surrogate  may  adjourn,  468. 

enlarge  time  to  report,  468. 

heirs  may  apply  to  have  dower  assigned,  460. 

proceedings  before  commissioner,  470. 

objections  to  report,  470. 

costs  of  proceedings,  470. 

appeal  to  supreme  court,  471. 

duty  of  surrogate  on,  471. 
DRUNKARD, 

when  incapable  of  making  a  will,  88. 

incompetent  to  be  executor,  134,  235. 

or  administrator,  236. 
or  guardian,  460. 
DURESS, 

when  it  avoids  a  will,  89. 

E 

EFFECTS. 

what  passes  under  that  term,  371. 
ELECTION, 

when  widow  put  to,  with  respect  to  exempt  articles,  255. 

do.  in  lieu  of  dower,  363,  364.     See  title  Legacy. 
ESTATE  PUR  AUTER  VIE 

to  be  inventoried  as  personal  property,  250. 
EVIDENCE 

in  testamentary  cases,  174-184. 

aged,  sick  or  foreign  witness,  how  examined,  177,  178. 


INDEX.  571 

EVIDENCE— continued. 

opinion  of  witnesses,  how  far  received,  179,  182. 

order  of  proof,  183. 

on  sale  of  real  estate,  318. 

admissions  of  executors  and  administrators  not  evidence,  318. 
EXEMPT  ARTICLES.     See  Inventory  and  251,  252. 

to  be  inserted  in  inventory,  251,  252. 

surrogate's  power  over  same,  254. 

how  right  to,  barred  by  will,  255. 

reason  and  policy  of  the  law,  256. 

to  whom  the  articles  finally  belong,  256,  257. 
EXEMPLIFICATION  OF  WILLS 

proved  abroad,  164. 
EXPATRIATION, 

not  allowed  without  leave  of  government,  164. 
EXECUTOR, 

surrogates'  power  of  control  over,  36. 
who  eligible  and  who  not,  134,  137. 
when  his  appointment  may  be  objected  to,  136. 
grounds  of  superseding  him,  136,  137. 
by  what  words  appointment  made,  138. 
for  what  time,  138. 
power  not  assignable,  139. 
nor  transmissible,  139. 
de  son  tort  abolished,  140. 
his  refusal  to  accept  renunciation,  141. 
being  surrogate,  has  no  jurisdiction,  142. 
when  he  may  retract  his  renunciation,  142. 
when  it  is  too  late  to  do  so,  143. 
when  there  are  divers  executors,  144. 
his  power  before  and  after  probate,  146,  147. 
may  be  compelled  to  produce  will,  150,  151. 
may  have  the  will  proved,  149,  152. 
when  and  before  whom  to  take  oath  of  office,  161. 
foreign,  how  to  obtain  letters,  162,  163. 
renouncing,  is  a  competent  witness,  176. 

if  there  be  several  and  one  die,  the  authority  vests  in  the  survivor  209 
211.  '       ' 

when  to  give  bond,  224,  341. 
when  letters  to  be  revoked  and  how,  234. 
his  power  and  duty  as  to  inventory.     See  Inventory,  243  et  seq. 
must  return  it  to  surrogate  under  oath,  262. 
may  be  attached  for  refusal,  264. 
consequences  of  refusal  to  return  do.  264. 


572  INDEX. 

EXECUTOR— continued. 

when  further  inventory  required,  266. 

collecting  and  disposing  of  effects,  267. 

may  sell  on  credit,  267. 

may  compound  doubtful  claims,  268. 

must  pay  funeral  expenses,  269. 

a  sale  of  property  by  one  of  several,  good,  269. 

must  pay  probate  expenses,  269. 

debts,  order  of,  273,  293. 
U.  S.  274-277. 

taxes  assessed  on  estate,  277. 

judgment  docketed,  &c.  279,  281. 

his  own  expenses,  273. 
of  payment  of  inferior  before  superior  debts,  290. 
sale  of  personal  assets,  292. 
advertising  for  claims,  294. 
when  to  pay  do.  295. 

must  have  his  own  debts  proved,  303,  318. 
proceedings  of,  to  sell  real  estate  to  pay  debts,  306. 
when  to  render  account,  314. 
how  made  and  verified,  315. 
admissions  not  evidence  against  heirs,  318. 

authority  of  an  executor  under  a  power  must  be  strictly  pursued,  342. 
may  be  compelled  to  apply  for  order  of  sale,  344. 
legacies  to,  when  conditional,  360.      And  see  titles  Legacy.     Lapse. 

Condition. 
what  an  acceptance  of  the  office,  361. 
his  assent  to  a  legacy,  how  compelled  if  refused,  379,  380. 
remedy  against,  before  surrogate,  380. 
his  duty  as  to  payment  of  legacies.     See  title  Legacy. 

as  to  the  residue,  394. 

distribution,  395-398. 
may  be  compelled  to  pay  legacies  and  distributive  shares,  410,  411. 
may  be  required  to  account  and  pay  debts,  412,  413. 
practice  in  these  cases,  414. 
order  to  account,  how  served,  415. 
consequences  of  refusal,  415. 
grounds  of  resisting  the  claim,  415,  417. 
if  assented  to,  when  may  be  paid,  417. 
when  husband  sues  for  legacy  to  wife,  418. 


INDEX.  573 

F 

FATHER, 

when  entitled  to  letters  of  administration  of  his  child,  189. 

his  right  under  the  statute  of  distribution,  397. 

he  alone  can  appoint  a  testamentary  guardian,  452. 
FEAR, 

when  it  avoids  a  will,  90. 

nsture  of  it,  90. 
FEIGNED  ISSUE. 

to  determine  the  validity  of  a  debt,  on  application  to  sell  real  estate, 
316. 

how  issue  made  up,  316. 
FINAL  SETTLEMENT 

of  accounts  of   executors  and  administrators.      See  title  Accounts, 
427  etseq. 
FIRST  JUDGE, 

when  to  act  as  surrogate,  54. 
FIXTURES. 

what  annexations  go  to  the  heir,  and  what  to  the  executor  or  admin- 
istrator, 258,  259. 

grass  growing  and  fruit  not  gathered,  260. 
FOREIGN  LANGUAGE, 

probate  of  a  will  in,  to  be  granted  of  a  translation,  165. 
FRAUD, 

will  obtained  by,  void,  90. 
FUNERAL  EXPENSES, 

first  lien  on  the  estate,  269. 

extravagant,  a  devastavit,  269. 

what  allowed  in  insolvent  estates,  270. 

when  body  may  be  removed  at  a  distance  for  interment,  271. 

as  to  mourning  for  family,  272. 

when  tombstones  allowable,  272. 

G 

GAMBLER, 

disqualified  from  being  executor  or  administrator  by  reason  of  improv- 
idence, 136,  137. 
GUARDIANS, 

when  first  appointed  by  surrogate,  30. 

appointment  to  be  recorded,  51. 

ad  litem,  when  and  how  appointed,  157,  158,  159,  204. 

power  of  appointment  of,  an  incident  of  all  courts,  157. 

when  to  be  appointed  administrator,  214. 


574  INDEX. 

GUARDIANS— continued. 

nature  and  duration  of  the  office,  214-219. 

when  appointed,  to  give  a  bond,  217. 

on  sales  of  real  estate,  in  case  there  are  minors,  guardian  ad  litem  to  be 

appointed,  310. 
in  case  of  accounting,  how  appointed,  424,  425. 
when  guardian  ad  Jitein,  entitled  to  pay,  425.        * 
when  minor  omits  to  apply,  how  to  be  appointed,  425.     See  Guardian 
and  Ward. 
GUARDIAN  AND  WARD, 

relation  of,  treated,  443  et  seq. 
different  kinds  of  guardian,  443. 
guardian  by  nature,  443. 
by  nurture,  444. 
in  socage,444. 
testamentary,  445. 
chancery  guardian,  446. 
when  to  be  appointed  by  surrogate,  446. 

cannot  appoint  a  guardian  for  an  infant  whose  father  is  alive,  447. 
power  of  guardian  appointed  by  the  surrogate,  448. 
general  duty  of  guardians,  448,  449. 
cannot  sell  real  estate  of  ward,  449. 
may  sell  his  personalty,  450. 
must  keep  money  invested,  451. 
may  receive  legacy  of  ward,  451. 
his  commissions,  451. 
appointment  of,  how  made,  452. 
by  will  or  deed,  452. 
by  father  only  and  not  by  mother,  453. 
surrogate,  no  jurisdiction  over,  453. 
petition  for  appointment,  454. 
proceedings  on  do.  454,  455,  457. 
bond  to  be  taken  to  each,  455. 
to  file  inventory  annually  456. 
infant  under  14,  proceedings,  457. 
who  to  be  preferred,  458. 
interest  of  the  infant  to  be  regarded,  458. 
removal  of  guardian,  459. 
by  petition  and  citation,  459. 
proceedings  on  do.  459,  460. 
accepting  resignation  of,  461. 
accounting  by  guardian,  463. 
GRAND  PARENT, 

preferred  in  degree  of  kindred  to  uncle  or  aunt,  403. 


INDEX.  575 

H 

HALF  BLOOD, 

relatives  of,  entitled  to  administration,  as  well  as  the  whole  blood,  but 

the  latter  preferred,  197. 
take  equally  with  the  relatives  of  the  whole  blood,  in  successions  to 
personal  estate,  403. 
HEIRS, 

names  and  places  of  residence,  to  be  set  forth  in  petition  to  prove  will 

of  real  estate,  171.     (App.  No.  5.) 
citation  to  be  directed  and  served  on  them,  172. 

to  be  served  with  notice,  on  the  sale  of  real  estate,  by  order  of 
surrogate,  309. 
may  oppose  order  of  sale,  314  et  seq. 

admission  of  executors  or  administrators,  not  evidence  against,  317,  318. 
when  they  may  apply  to  have  dower  admeasured,  4G9. 
HOLOGRAPH, 

a  will  written  wholly  by  the  testator,  70. 
HOTCHPOT, 

when  an  advancement  brought  into,  401. 
HUSBAND  AND  WIFE, 

consent,  in  writing,  of  the  husband  to  the  issuing  of  letters  to  the  wife, 

135. 
marriage  after  letters,  consent  unnecessary,  135. 
when  wife  entitled  to  letters  of  administration,  they  are  to  be  granted 

to  him  in  her  right,  189. 
marriage  of  a  female  sole  administratrix,  makes  husband  liable  for  her 
acts,  293. 

I 

IDIOT, 

what  constitutes  the  disability,  67. 

incapable  of  making  a  will,  68. 
ILLITERATE  PERSONS, 

can  make  a  will  or  be  a  witness,  105. 
IMPORTUNITY, 

its  effect  on  a  will,  91,  92. 
IMPROVIDENCE, 

ground  of  exclusion  from  being  executor,  136,  137. 
as  administrator,  236. 
INFANTS, 

when  incapable  to  make  a  will,  66,  67. 

at  what  age  capable,  66,  67. 


576  INDEX. 

INFANTS — continued. 

guardians,  ad  litem  for,  157. 

right  to  exempt  articles,  251,  256. 
INJUNCTION, 

when  issued  by  surrogate,  48,  461. 
INSANITY, 

when  insanity,  general  or  partial,  will  invalidate  a  will,  80.     See  title 
Lunatic. 

moral,  Jiow  defined,  and  its  effect,  83. 

sanity  is  to  be  presumed,  74. 
INVENTORY, 

duty  of  executor  and  administrator,  with  respect  to,  243  et  seq. 

ancient  practice,  244. 

evidence  of  assets,  247. 

court  act  judicially  in  receiving  it,  246. 

object  of,  246,  247,  248. 

commission  of  appraisment,  247. 

present  practice,  248. 

appointment  of  appraisers,  248. 

principle  on  which  appraisment  should  be  made,  249. 

within  what  time  to  be  made,  250. 

what  notice  to  be  given,  250. 

what  articles  are  exempt,  251. 

power  of  surrogate  over,  254. 

how  right  to  exempt  articles  waived,  255. 

final  disposition  of  the  exempt  articles,  256. 

mode  of  taking  and  property  to  be  inserted,  258,  259. 

rule  as  to  fixtures,  259,  260. 

debts  due  by  executor  to  testator  to  be  inventoried,  261. 

duplicates  to  be  made,  and  oath  to  same,  262. 

method  of  compelling  return  to  do.,  263,  264. 

consequences  of  refusing  to  return,  264,  265. 

when  further  inventory  to  be  returned,  266. 
IRREGULARITY, 

surrogate's  power  to  set  aside  proceedings  for,  49. 
ISSUES  OF  FACT, 

how  to  be  tried  and  where,  47. 

J 

JUDGE, 

when  to  act  as  surrogate,  54. 
JUDGMENTS, 

order  of  preference  among,  279. 

of  a  foreign  country  treated  as  a  simple  contract,  279, 


INDEX.  577 

JUDGMENTS— continued. ' 

against  executor  or  administrator,  no  preference,  283. 
how  at  common  law,  286. 
enforcing  payment  of,  299,  &c. 

K 

KINGS  COUNTY 

surrogate  of  to  have  clerks,  41. 
their  power  and  duty,  41. 


LAPSE  OF  A  LEGACY 

by  death  of  legatee  before  the  death  of  the  testator,  353. 

in  what  cases  prevented  by  revised  statutes,  353. 

how  it  may  be  prevented  by  will,  354. 

by  death  of  legatee  after  the  death  of  the  testator,  355-358. 

how  intention  of  testator  ascertained,  355. 

rules  of  construction  with  regard  to,  356. 

of  legacies  payable  out  of  real  estate,  356. 
of  a  mixed  fund,  356. 
LEASE, 

for  years  inventoried  as  personal  property,  259, 
LEGACY, 

judge  of  the  court  of  probates,  jurisdiction  over,  29. 

surrogate's  jurisdiction  over,  36. 

when  void,  by  legatee  subscribing  the  will  as  a  witness,  175. 

when  a  charge  on  real  estate,  enforced  in  court  of  equity,  328. 

by  what  words  created  and  by  what  not,  328,  329. 

different  kinds,  incidents  and  construction,  348  et  seq. 

general  and  specific,  meaning  of  terms,  346. 

presumption  in  favor  of  general  legacies,  346. 

when  legacy  in  pawn  must  be  redeemed  by  the  executor,  348,  352. 

distinction  between  the  two,  350. 

ademption,  an  incident  of  specific  legacy,  351. 

meaning  of  the  term  and  cases,  351,  352. 

demonstrative  legacy,  how  defined,  352. 

vested  and  contingent,  353. 

primarily  payable  out  of  the  personalty,  353. 

when  a  legacy  lapses,  353-358.     And  see  title  Lapse. 

how  lapse  may  be  prevented  by  the  will,  354. 

to  two  jointly,  and  one  dies,  goes  to  survivor,  354. 

to  several  by  name,  to  be  divided  among  them  in  equal  parts,  on  death 
of  one,  his  share  lapses,  354. 

73 


578  INDEX. 

LEGACY — contin  ued. 

not  payable  till  a  year  after  letters,  355. 
lapse  of  legacies  payable  out  of  real  estate,  358. 
do.  of  a  mixed  fund,  358. 
absolute  and  conditional,  how  defined,  358. 
conditions  precedent  and  subsequent,  358. 
by  what  words  created,  358. 
when  void  for  repugnancy,  359. 
conditions  in  terrorem,  not  void,  359. 
when  against  good  morals,  359. 
to  executors,  are  conditional,  360. 
notice  for  legacy  need  not  be  stated,  360. 
whether  cumulative,  or  a  repitition,  362. 
of  election  and  satisfaction,  363,  364. 
to  a  creditor,  Avhen  in  satisfaction,  365. 
and  Avhen  not,  366. 

to  a  debtor,  effect  of,  at  common  law,  367. 
effect  under  our  statutes,  367,  368. 
of  the  persons  capable  of  being  legatees,  368. 
what  necessary  to  constitute  a  legacy,  368. 
construction  of  wills.     See  title  Wills,  369. 
of  bequests,  372. 
with  regard  to  the  person,  373. 

to  children,  374. 

to  nephews,  nieces,  descendants,  375. 

to  issue,  who  included,  376. 
when  ambiguous,  how  explained,  376,  377. 
of  the  time  of  payment,  377,  378. 
of  the  assent  of  executors  to,  379. 
order  in  which  to  be  paid,  380. 
speeific  legacies  to  be  first  paid,  381. 
preference  to  legacies  of  piety,  381. 
when  priority  expressly  given,  382. 
when  legacies  abate,  382. 
of  the  person  to  whom  payable,  382. 
to  an  infant,  when  payable  to  his  father,  382. 
when  to  guardian,  384. 

additional  security  to  be  given  by  guardian,  384. 
if  no  guardian,  when  to  be  invested,  384. 
when  paid  in  to  trust  company,  386.  387. 
to  a  married  woman,  to  whom  to  be  paid,  387. 
for  life,  with  limitation  over,  388,  389. 
when  interest  is  allowable  on,  390,  391. 
increase  of  specific  legacies,  391. 


INDEX.  579 

LEO  AC  Y — con  tin  u&  I. 

when  and  by  what  words  charged  ou  real  estate,  391,  392,  393. 

personal  estate  still  chargeable,  393. 

when  legacies  to  be  refunded,  393. 

residue,  when  and  to  whom  payable,  394. 

enforcing  payment  of,  409,  410. 

when  bond  may  be  required,  410. 

when  before  the  expiration  of  a  year,  411. 

mode  of  application,  412. 

how  order  to  account  to  be  served,  415. 

what  may  be  shown  in  answer,  416,  417. 

cases  of  equitable  conversion,  420. 

final  account  after  18  months,  421. 

proceedings  on  do.  422  et  seq. 

order  to  account,  when  to  be  entered,  422. 

petition  for  general  account,  what  to  contain,  423. 

citation,  form  of  and  how  served,  423. 

care  of  infants,  guardian  ad  litem,  424,  425. 

mode  of  rendering  the  account,  426. 

what  to  contain,  427. 

oath  to  do.  428. 

vouchers,  428. 

principles  on  which  to  be  stated,  429. 

auditors,  their  power  and  duty,  432. 

objections  to  account,  how  to  be  stated,  432. 

debts  claimed  by  executor  or  administrator,  to  be  proved  to  and  allowed 
by  surrogate,  430. 

when  citation  for  do.  to  be  served,  430,  431. 
LEGATEE, 

may  have  the  will  proved,  152. 

effect  on  his  legacy  by  subscribing  the  will  as  a  witness,  175. 

who  capable  of  being  legatee,  368.     See  title  Legacy. 

when  to  refund  a  legacy,  393. 
LETTERS  TESTAMENTARY, 

when  and  how  to  be  issued,  160. 

form  of,  160,  and  Appendix,  No.  22. 

when  to  be  recorded,  161. 

not  issued  till  oath  of  office  taken,  161. 

when  to  a  foreign  executor,  162,  163. 

to  be  recorded,  166. 

how  and  for  what  cause  revoked,  234,  235. 

revocation  by  appeal,  241. 

its  effect  on  intermediate  acts,  242. 


580  INDEX. 

LIMITATION 

of  actions,  may  be  interposed  to  claims  on  sale  of  real  estate,  317,  335. 

short  do.  when  it  occurs,  29G. 
LITCID  INTERVALS, 

doctrine  with  respect  to,  74-80. 
LUNATIC, 

same  as  unsound  mind,  72. 

meaning  of  the  term,  73. 

cannot  make  a  will,  74. 

sanity  is  presumed  till  the  contrary  appears,  74. 

may  make  will  in  lucid  interval,  79,  80. 

when  under  guardianship,  may  make  a  will,  89. 

M 

MARRIAGE 

of  a  female  sole  administratrix,  makes  her  husband  liable  for  her"  acts, 
239. 
MARRIED  WOMEN, 

when  not  permitted  to  make  a  will,  92. 

when  allowed  to,  92,  93,  94. 

when  under  a  power,  95. 

on  her  death,  citation  must  issue  to  her  husband,  155. 

to  whom  her  legacy  to  be  paid,  387. 

rights  of  under  statute,  399. 
MARRIAGE  AND  BIRTH  OF  A  CHILD, 

a  revocation  of  will,  127. 
MOURNING, 

not  allowed  as  a  funeral  expense  as  against  creditors,  272. 
MOTHER, 

when  entitled  to  administration  of  her  intestate  child,  189. 

of  her  rights  under  the  statute  of  distributions,  397. 
MUTES, 

how  they  make  acknowledgment  to  will,  and  request  the  witnesses  to 
attest,  101. 
MUTUAL  WILL, 

unusual  in  this  country,  60. 

N 
NEW  TRIAL, 

on  issues  from  surrogate's  court,  how  and  by  what  court  granted,  47,  48. 
NEW  YORK, 

surrogate  of  to  appoint  assistants,  40. 

salary  of,  fixed  by  supervisors,  40. 

in  case  of  vacany,  how  filled,  41. 


INDEX.  581 

NEXT  OF  KIN, 

names  and  places  of  abode  to  be  ascertained  on  application  for  probate) 
152. 

citation  to  be  directed  to  them  by  name,  152,  153. 

who  meant  by  the  term  next  of  Jcin,  154. 

how  ascertained,  154,  155,  195; 

their  right  to  letters  of  administration,  189; 

entitled  to  notice  of  appraisment,  250. 

their  rights  under  the  statute  of  distributions,  395,  399; 

bequest  to,  how  confined,  376. 
NON  COMPOS  MENTIS, 

meaning  of  the  term,  73; 

cannot  make  a  will,  73; 
NON-INHABITANT, 

rule  as  to  letters  and  probate,  1G1,  162,  163; 
NON-RESIDENT 

executor  or  administrator,  appointed  abroad,  cannot  sue  here,  166,  163. 
NOTICE  OF  APPRAISMENT, 

to  be  served  five  days  previous,  250.     See  Inventory; 
NUNCUPATIVE  WILL, 

in  what  cases  allowable,  64,  115. 

how  made  and  attested,  65,  115. 

real  estate  not  disposed  of  by,  116. 

affects  only  personalty,  116. 

no  particular  number  of  witnesses  required,  117. 

must  be  admitted  to  probate,  167. 

0 
OATH, 

of  executor,  before  whom  and  when  to  be  taken,  161. 
administrator,  do.,  202. 

do.  to  inventory,  262. 
OATH  OF  OFFICE 

of  surrogate  to  be  taken  fifteen  days  after  notice,  55; 

where  to  be  filed,  55. 
OFFICERS 

of  the  surrogates'  courts,  40. 

when  and  where  clerks  allowed,  41. 

attorneys  and  counsellors,  42,  43. 

sheriff,  when  an  officer,  44. 

judicial,  forbidden  to  act  as  counsel  or  attorney,  53; 
OLD  AGE, 

not  disqualification  tb  make  a  will,  84. 


582  INDEX. 

OPINIONS 

of  witnesses,  when  admissible,  181,  182. 
ORDER 

for  issuing  letters  of  administration,  when  and  where  entered,  202. 

to  be  entered  in  minutes  for  all  process,  &c.,  51. 

of  the  surrogate,  to  be  obeyed,  36,  224.    (And  see  the  several  titles  with 
respect  to  which  an  order  may  be  made.) 


PARAPHERNALIA, 

of  what  it  consists,  251.     , 
PETITION 

to  prove  will,  150.     App.  Nos.  5,  11. 

obtain  letters  of  administration,  201.     App.  No.  38. 
do.  cum  testamento  annexo,  211. 
do.  do.  de  bonis  non,  214.     App.  No.  38. 
to  revoke  letters  of  administration,  234.     App.  No.  4S. 
to  remove  executors,  &c,  234.     App.  No.  25. 
to  compel  executor  to  accept  or  renounce,  243.     App.  35. 
to  obtain  appraisement  of  goods,  234.     App.  No.  58. 
to  compel  the  return  of  inventory,  263.     App.  No.  66. 
for  payment  of  a  debt  in  advance  of  final  settlement,  301.  App.  No.  74. 
for  proof  of  debt  due  by  deceased  to  the  executor  or  administrator,  303, 

317.     App.  No.  71. 
for  order  to  account,  414,  415.     App.  No.  75. 
for  sale  of  real  estate,  309.     App.  No.  84. 
to  compel  executors  to  sell,  345. 
to  sell  additional  parcel,  330.     App.  No.  104. 
to  compel  executor  to  pay  legacy,  410,  411.     App.  No.  75. 

do.  payment  of  legacies,  debts  or  distributive  shares,  410,  414. 

do.  to  account.  423. 

of  executors  to  render  final  account,  423.     App.  No.  77. 
for  appointment  of  guardian,  454,  457.     App.  Nos.  109,  116. 
for  removal  of  do.,  460.     App.  No.  123. 
for  resignation  of  guardian,  461. 
for  the  accounting  by  guardian,  463. 
for  the  admeasurement  of  dower,  466.     App.  No.  129. 
PLEADINGS, 

what  allowed  in  surrogates'  courts,  45,  46. 
form  of,  analogous  to  those  of  other  courts,  47. 
when  an  allegation  of  interest,  48. 
PREROGATIVE   COURT, 

jurisdiction  of,  under  the  colony,  26. 


INDEX.  583 

PKOBATES, 

court  of,  when  organized,  and  its  powers,  20. 
empowered  to  compel  administrator  to  .account.  39, 

to  hear  causes  touching  legacies,  29. 

when  abolished,  32. 

to  what  court  its  powers  were  assigned,  32. 

of  wills  conclusive  as  to  personalty,  60,  61,  220. 
but  only  prima  facie  as  to  realty,  (il. 

of  wills,  what  it  is,  145. 

necessity  and  effect  thereof,  140,  225. 

retrospective,  operation  of.  147. 

in  what  court  to  be  made,  148. 

manner  of  and  practice,  14!). 

when  is  lost  or  destroyed,  150. 

persons  interested  may  prove  the  will,  152. 

proceedings  on  do.,  153,  &c. 

of  will  in  a  foreign  language,  of  a  translation,  105. 

of  what  instrument,  necessary,  166,  167. 

conclusive  as  to  appointment  of  executor,  220. 

not  evidence  as  to  real  estate,  228. 

revocation  of,  229  et  seq. 

next  of  kin  may,  within  a  year,  contest,  230. 

revocation  to  be  entered  of  record,  232. 

costs  of  proceedings,  how  to  be  paid,  233. 

grounds  for  revoking  probate,  233,  234. 

revocation  of  by  appeal,  241. 

its  effect  on  intermediate  acts,  242. 

expenses  of,  how  paid,  273. 
PROCESS, 

what  may  lie  issued,  44,  48. 

orders  for  to  be  entered  in  minutes,  51. 
PUBLICATION 

of  will  when  necessary  and  how  done,  202.     See  title  Wju,. 

of  notice  to  claimants  to  exhibit  claims,  293,  294  et  seq. 

R 

PEAL  ESTATE, 

how  formerly  sales  were  made,  39. 

present  practice,  306  et  seq. 

application  to  be  made  within  three  years,  308. 

all  the  executors,  &c.  must  unite,  308. 

mode  of  application  by  petition,  305. 

how  jurisdiction  is  acquired,  309. 

in  case  of  minors,  guardians  to  be  appointed,  310. 


584  INDEX, 

REAL  ESTATE— continued. 

order  to  show  cause  when  made,  311. 

when  claims  to  be  presented,  312. 

how  order  is  to  be  served,  312,  313. 

when  widow  is  not  a  proper  party,  313. 

what  other  persons  are  parties,  309,  310. 

accounts  to  be  rendered,  315. 

who  may  resist  the  application,  316,  317. 

when  order  of  sale  to  be  made,  319. 

what  security  to  be  taken,  320. 

on  refusal  to  give  bail,  what  remedy,  320. 

Avhen  order  for  leasing  or  mortgaging  preferred  to  a  sale,  321,  322. 

what  title  passes  by  a  sale,  323. 

form  and  substance  of  order,  323,  324. 

sale  to  be  at  public  auction,  324. 

notice  of  do.,  how  given,  325. 

who  may  bid  at  such  sales,  325. 

as  to  opening  biddings,  327. 

when  sales  to  be  confined,  327,  328. 

sales  subject  to  incumbrances,  328. 

what  direction  in  a  will  makes  a  charge,  328. 

remedy  to  enforce  a  charge  in  equity,  328. 

sa|p  by  order  of  the  surrogate  extinguishes  the  dower  of  the  widow  of 
the  deceased,  329. 

by  whom  deed  to  be  given  on  such  sale,  329. 

must  contain  the  order  of  sale  and  order  of  confirmation,  329. 

when  a  further  sale  may  be  made,  329,  330. 

proceedings  do  not  abate  by  death  of  executor  or  administrator,  330. 

the  authority  is  a  naked  power,  not  coupled  with  an  interest,  330. 

a  contract  of  purchase  may  be  sold  by  order  of  surrogate,  331. 

proceedings  on  such  sale,  331  to  333. 

money  to  be  brought  into  court,  332. 

distribution  of  the  avails  of  sales  of  real  estate,  333  et  seq. 

must  be  brought  into  court,  333. 

order  of  payment,  fees  and  expenses,  333. 

satisfy  widow's  claim  of  dower,  333. 

notice  to  be  given  to  widow,  333. 

she  is  required  to  elect  a  sum  in  gross  and  sign  an  instrument  in  writ- 
ing, 333. 

it  must  be  acknowledged,  333. 

and  preserved  by  surrrogate,  334.     (App.  Xos.  99  to  1.02.) 

if  she  refuses  to  elect,  an  annuity  to  be  allowed  her,  and  by  what  rule, 
334. 

balance  to  be  distributed,  334. 


INDIA'.  585 

REAL  ESTATE— contmued. 

notice  to  be  published  6  weeks,  334. 

the  valid  claims  to  be  then  adjusted,  334,  335. 

what  objections  may  be  urged,  335. 

order  allowing  or  rejecting  claims,  appealable,  335. 

schedule  of  claims  to  be  made,  335. 

debts  not  due  may  be  paid,  335. 
paid  ratably,  336. 

distribution  sheet  to  be  made,  330. 

if  proceeds  exceed  the  debts,  residue  belongs  to  heirs  and  devisees, 
336,  337. 

on  sale  on  credit,  surrogate  cites  the  securities,  336,  337. 

surrogate  cannot  open  his  decree,  338. 

costs  on  litigated  claims,  how  allowed,  339. 

fees  to  be  taken,  339. 

at  common  pleas  rates,  340. 

distribution,  when  sale  made  under  a  power  in  the  will  341. 

sales  under  a  power  may  be  public  or  private,  342. 

executors  and  administrators  may  be  compelled  to  apply  344. 

must  account,  order  how  served,  345. 

creditor's  remedy,  if  surrogate  declines,  347. 
RECOGNIZANCES, 

in  what  order  paid,  284. 

meaning  of  the  term,  287. 
REFERENCE 

of  claims  disputed,  295. 
RENT, 

reserved  to  the  deceased,  which  had  accrued  at  the  time  of  his  death, 
to  be  inventoried  as  assets,  259. 

when  preference  given  in  payment  of,  284. 
REPUBLICATION 

of  wills,  132,  133.     And  see  title  Will. 
REPRESENTATION, 

not  admitted  among  collaterals  after  brothers'  and  sisters'  children  397 
REQUEST 

of  witnesses  to  attest  the  will,  98. 

how  made  by  deaf  and  dumb,  101. 
RENUNCIATION, 

how  and  when  made,  141. 

must  be  in  writing,  141. 
by  refusal  to  qualify,  142. 

when  it  may  be  retracted,  142. 

when  there  are  several  executors  and  one  only  qualifies,  143. 

74 


586  INDEX. 

RENUNCIATION— con  tinned. 

of  right  to  administration,  203. 

its  form  and  effect,  203. 

right  to  distributive  share  not  waived,  399. 
RESIGNATION 

by  guardian  of  his  trust,  461. 

citation  to  the  ward  to  be  issued,  4G1. 

proceedings  on  do.  462. 
RESTRAINT, 

what  sufficient  to  invalidate  a  will,  89. 
RESIDUE, 

bequest  of,  when  not  a  charge  on  the  realty,  328,  329. 

of  the  payment  of,  394  et  seq. 
RETAINER, 

by  executor  or  administrator,  abolished,  303.  430. 
REVOCATION 

of  will,  how  made,  118. 

by  a  subsequent  will,  118. 

by  express  terms,  121. 

by  cancellation,  &c.  123. 

implied  revocations,  127. 

by  marriage  and  birth  of  a  child,  127. 

of  probate,  229  et  seq.  241. 

of  letters  testamentary,  234,  241,  265. 

of  letters  of  administration,  236,  241,  263. 

of  guardian,  460. 

s 

SANITY 

presumed  till  the  contrary  appears,  74. 
SATISFACTION, 

when  a  legacy  operates  in,  of  a  debt,  &c.  366. 

and  when  not,  366.     See  title  Legacy. 
SHERIFF 

required  to  serve  process  of  surrogates'  courts,  43, 
SHORT  LIMITATION, 

when  it  occurs,  296. 
SOLDIER, 

in  actual  service,  may  make  a  nuncupative  will,  65,  116. 
SPECIFIC  LEGACY, 

meaning  of  the  term,  349. 

court  leans  against,  349. 

incidents  of,  351.     See  title  Legacy  and  Lapse. 


INDEX.  587 

SPECIAL  LETTERS 

of  administration,  207  eiseq. 

STATUTE  OF  LIMITATIONS 

may  be  interposed  against  the  sale  of  real  estate,  317,  335 
SUBSCRIPTION 

of  testator  at  end  of  will,  98-100. 

what  sufficient  for  witnesses,  98-100. 

signing  by  mark,  98. 
SUBPCENA, 

surrogate,  power  to  issue,  48. 

form  of  subpoena,  App.  No.  12. 

subpoena  duces  tecum,  App.  Nos.  12,  15. 

to  produce  will  for  probate  or  proof,  150,  151. 
SUMMONS 

to  compel  executor  to  take  the  office,  143.     (Apps  No.  36.) 

to  compel  the  return  of  inventory,  263. 
SUPREME  COURT, 

when  wills  proved  therein,  164. 

will  so  proved,  transmitted  to  surrogate,  164. 

proof  of  will  lost  or  destroyed,  150. 
SURROGATE, 

his  jurisdiction  under  the  colony,  27. 

when  the  office  was  organized,  27. 

how  appointed  originally,  28. 

when  jurisdiction  over  legacies  first  given,  30. 

when  first  authorized  to  order  sale  of  real  estate  to  pay  debts,  30. 

when  to  appoint  guardian,  30. 

first  authorized  to  appoint  commissioners  to  assign  dower,  31. 

a  limited  jurisdiction,  31. 

his  duties  before  the  R.  S.  33. 

jurisdiction  under  the  constitution  of  1846,  33. 

only  court  of  original  jurisdiction  in  testamentary  matters,  34. 

not  a  court  of  record,  35. 

his  general  jurisdiction  by  the  present  law,  36. 

enlarged  by  several  statutes,  37,  38. 

his  general  powers  and  duties,  44. 

may  issue  commission  to  examine  foreign  witness,  45. 

power  to  set  aside  defaults,  &c.  49. 

authorized  to  revoke  letters  at  common  law,  50. 

what  books  to  be  kept  by  him,  51. 

when  to  procure  a  new  seal,  52. 

to  record  wills  and  file  papers,  52. 

to  reduce  testimony  to  writing,  52. 

not  to  be  counsellor,  &c.  in  certain  cases.  53. 


588  INDEX. 

S  URROG-ATE— con  tiuued. 

not  to  act  when  interested  or  of  kin,  53. 

when  county  judge  to  act,  54. 

to  give  bail  on  his  election,  54. 

to  take  oath  of  office  in  15  days,  55. 

before  what  officer  taken,  55. 

appointed  executor,  has  no  jurisdiction,  142. 

his  jurisdiction  in  granting  probate,  145,  148,  152. 

granting  letters  of  administration,  187  et  seq. 
discretion  in  selecting  administrator,  198. 
orders  to  be  obeyed,  3G,  224. 
when  allowed  to  take  fees,  273. 
his  jurisdiction  in  revoking  probate,  231. 
letters  testamentary,  234. 
with  respect  to  inventory,  248. 
compelling  return  of  do.,  263. 
with  respect  to  advertising  for  claims,  294. 
enforcing  payment  of  judgments,  299. 
on  sale  of  real  estate,  306. 

of  contracts,  331. 
distribution  of  avails,  333. 

commission  on  do.,  339. 
distribution  on  sale  under  a  power,  341. 
compelling  executors,  &c.  to  sell,  344. 

assent  of,  to  legacy,  379. 
when  to  receive  the  security  belonging  to  infants,  385. 
his  duty  to  invest  money  for  do.,  385. 
when  to  order  investment  in  trust  company,  386. 
his  jurisdiction  with  respect  to  debts,  legacies  and  distribution.     See  those 

heads. 
his  jurisdiction  over  claims,  418  et  seq. 

to  decree  payment  of  debts,  &c,  419. 
in  accounting  generally,  422  et  seq. 
may  protect  rights  of  the  wife,  418. 
to  appoint  auditors,  432. 
to  appoint  guardians  for  infants,  443,  452. 
to  remove  them  and  take  their  accounts,  459  et  seq. 
his  dirty  in  the  admeasurement  of  dower,  464,  471. 
for  fee  bill  of  1S44,  see  Appendix,  p.  557. 


tNDEX.  589 

T 

TAXES, 

when  preferred  in  payment,  277. 
TRUSTEE, 

may  elect  to  account  before  surrogate,  37. 

as  to  trustees  rendering  account,  421. 
TRUSTS, 

express  to  be  executed  by  courts  of  equity,  36. 

surrogate  cannot  decree  their  execution,  421. 

when  testamentary  trustees  may,  421. 
TESTAMENTARY 

capacity,  subject  examined,  GG  et  seq.     See  Infants,  Idiots,  Unsound 
Mind,  Feme  Covert  and  Will,  Illiterate. 

guardian  appointed  only  by  father,  4lG. 
TESTIMONY, 

when  taken  in  writing  and  recorded,  165. 

rules  of  in  surrogates'  courts,  316. 

in  surrogate's  court.     See  Evidence,  174  to  184. 

two  witnesses,  at  least,  to  the  will  must  be  produced  and  examined, 
104,  176. 

opinions,  how  far  admissible,  179,  182. 

order  of  proofs,  183. 

on  sales  of  real  estate,  316. 
TOMBSTONES, 

how  far  allowed  as  a  funeral  expense,  271,  272. 

u 

UNDUE  INFLUENCE, 

when  it  avoids  a  will,  91,  92. 
UNSOUND  MIND.     See  Lunatics,  &c,  72. 

V 

VACANCY 

in  office  of  surrogate,  regulations  concerning,  54. 
VESTED   LEGACIES, 

doctrine  of,  353.     See  title  Lapse. 


590  ^DEX. 

W 

WIDOW, 

when  a  party  to  sales  of  real  estate,  312. 
and  when  not,  313. 
WILL, 

its  origin,  nature  and  incidents,  56. 

from  what  time  a  will  speaks,  58. 

wherein  it  differs  from  a  deed,  58,  GO. 

codicil  to  a  will,  58. 

is  revocable  during  the  life  of  the  testator,  58. 

effect  of  domicil  upon,  59. 

must  conform  to  the  law  of  the  country  where  it  is  made,  59/ 

mutual  wills  are  unusual,  GO. 

probate  of,  conclusive  as  to  personaltj',  GO. 

of  real  and  personal  property,  must  be  admitted  to  probate,  63. 

requisites  to  a  valid  execution,  the  same  in  both  cases,  63. 

except  as  to  age  of  testator,  64. 
nuncupative  wills,  what,  64.   . 
who  capable  of  making  wills,  65,  66. 
persons  incapable — infants,  66,  67. 
idiots,  67,  68. 

blind,  deaf  and  dumb,  68,  69,  70. 
how  they  may  declare  their  intention  arid  request  the  witnesses  to 

sign,  69. 
written  by  the  testator,  a  holograph,  70. 
of  illiterate  person,  what  precautions  necessary,  71. 
should  be  read  to  him,  72. 

unsound  mind,  meaning  of  the  term,  72.     See  Lunatic,  Idiot,  Insanity. 
will  deficient  in  natural  duty,  what,  82. 
in  old  age,  may  be  made,  84. 
by  the  imbecile,  87. 
by  the  drunkard,  88. 
under  duress,  89. 

fear,  fraud,  undue  influence,  90,  91. 
by  married  women,  92  to  95. 
by  persons  disqualified  by  crimes,  95-97. 
form  and  manner  of  making,  97. 
different  sorts  of  wills  and  codicils,  97. 
statutory  requirements  in  making,  97,  98. 

subscription,  attestation,  number  of  witnesses  and  request  to  do.  98. 
rule  at  common  law,  98. 
as  to  signing  by  mark,  98. 
in  presence  of  the  witnesses,  100,  101. 
how  by  a  blind  or  deaf  and  dumb,  101. 


INDEX.  591 

WILL — continued. 

publication  how  made,  102,  103. 
number  of  witnesses,  104. 
testator  must  request  witnesses  to  attest,  104. 
signing  by  a  mark,  105. 
witness  to  write  his  own  name,  105. 
add  his  place  of  abode,  105. 
should  attest  it  at  the  time,  10G. 
should  become  such  at  request  of  the  testator,  106. 
the  request  may  be  proved  by  circumstances,  107,  108 
witness'  failure  to  recollect,  108. 
attestation  clause  should  be  added,  109, 
form  and  manner  of  will,  112. 
what  words  pass  a  fee,  112. 
on  what  to  be  written,  113. 
and  with  what  instrument,  113, 
may  be  written  in  any  language,  114. 
written  by  party  benefited,  effect  of,  114. 
revocation  of,  how  made,  118. 

by  subsequent  will,  118. 

by  subsequent  act,  121. 

by  cancellation,  &c.  123. 

by  change  of  condition,  as  by  marriage  and  birth  of  a  child, 
127. 
lost  or  destroyed,  how  proved,  125. 
implied  and  partial  revocations,  128,  129. 
republication  of,  132,  134. 

its  production  before  surrogate  compelled  by  subpoena.  150,  L51. 
to  be  returned  on  demand,  161. 
of  foreigner,  when  and  how  proved,  162,  163, 
effect  of  domicil  upon,  165. 
commission  to  prove,  165. 
to  be  recorded,  166. 

when  copy  to  be  sent  to  secretary  of  state,  166, 
nuncupative^  must  be  admitted  to  probate,  167. 
of  real  estate,  to  be  proved  and  recorded,  167. 
former  practice,  167,  168. 
present  practice,  170. 
parties  to  the  proceeding,  170,  171. 
commenced  by  citation,  171. 
witnesses  to  be  examined,  172. 
certificate  of  proof  to  be  indorsed,  173. 
when  to  be  deposited  with  surrogate,  173. 
direction  as  to  payment  of  debts,  287,  288. 


•302  INDEX. 

WILL — con  tinned. 

what  direction  in,  constitutes  a  charge  on  real  estate,  328,  329,  371. 

will  and  codicil  construed  together,  370.     See  title  Legacy. 

construction  of,  generally,  369. 

with  regard  to  thing  bequeathed,  370. 
to  person  of  legatee,  373. 
to  ambiguity,  376,  377. 
WITNESSES, 

may  be  subpoenased  in  any  county,  44. 

testimony  of,  when  abroad,  taken  by  commissioner,  45. 

must  be  two  to  a  will,  98. 

must  sign  their  names  at  request  of  testator,  98. 

must  be  present  at  the  subscription,  100. 

when  may  sign  by  mark,  100. 

must  write  opposite  his  name  his  place  of  residence,  under  penalty,  104. 

the  omission  does  not  avoid  the  will,  104. 

must  sign  at  the  time  the  will  is  executed,  106. 

testator's  request  to,  may  be  inferred,  107,  108. 

failure  to  recollect  does  not  invalidate,  108. 

witness  being  named  as  executor,  110,  112. 
a  legatee  or  creditor,  111. 


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